Petition — James v. United States

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FILED \

IN THE MAR 14 1979

Supreme Court of the United States .....°. 0°

OCTOBER TERM, 1979

No. | #8°1412

DONALD JAMES,

Petitioner,

UNITED STATES OF AMERICA,

| Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

J. ROGER THOMPSON

FRANK J. PETRELLA

2403 National Bank of Georgia Building

Atlanta, Georgia 30303

404-688-0440

Attorneys for Petitioner

INDEX

Opinion below

Jurisdiction

Questions presented

Statutes involved

Statement of the case

Reasons for granting the writ

Conclusion

Appendix A

Appendix B

TABLE OF AUTHORITIES

Cases

Glasser v. United States, 315

U.S. 60 (1942)

Jackson v. Denno, 378 U.S. 368

(1964)

Kotteakos v. United States, 328

U.S. 750 (1946)

Krulewitch v. United States,

336 U.S. 440, 445 (1949) «

Washington v. United States,

357 U.S. 348 (1958)

United States v. Apollo, 476

F.2d 156 (5th Cir. 1973)

PAGE

3,11

United States v. Becker, 569 10,11

F.2d 951 (5th Cir. 1976)

United States w.:-Bell, 573 F.2d 6

1040 (8th Cir. 1978)

United States v. Borelli, 336 3,12

F.2d 376 (2nd Cir. 1964)

United States v. Enright, 579 6

F.2d 980 (6th Cir. 1978)

United States v. Geany, 417 7

F.2d 1116 (2nd Cir. 1964)

United States v. James, 576 1,3eae, 24

S7e F.a20 ise. (Sth Cir.

1978)

United States v. Herrera, 407 7

F.Supp. 766 (N.D. Ill. 1975)

United States v. King, 552 F.2d 7

833 (9th Cir. 1976)

United States v. Perez, 489 F.2d Ex

51 (5th Cir. 1973)

United States v. Peterson, 488 15

F.2d 645, 649 (5th Cir. 1974)

United States v. Petrozziello, 6

548 F.2d 20 (lst Cir. 1976)

United States v. Pisciotta, 469 7

F.2d 329 (10th Cir. 1972)

United States v. Rodrigues, 491 7

F.2d 663 (3rd Cir. 1974)

United States v. Stanchich, 550 7

F.2d 1294, 1298 (2nd Cir.

1977)

Statutes

18 U.S.C. 8 2

18 U.S.C. 8 4205(c)

21 U.S.C. 8 841(a) (1)

28 U.S.C. 8 1254(1)

Federal Rules of Evidence

104 (a)

104 (b)

104 (c)

801(d) (2) (E)

1101 (b)

iii

2,3,5-8,10

3-4

2,4-7

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

No.

DONALD JAMES, PETSTIONER

UNITED STATES OF AMERICA, RESPONDENT

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

Petitioner Donald James respectfully

prays that a writ of certiorari issue to

review the judgment and opinion of the

United States Court of Appeals for the

Fifth Circuit entered on February 12, 1979.

OPINIONS BELOW

The panel opinion of the Court of

Appeals was reported at 576 F.2d 1121

(Sth Cir. 1978). An en banc judgment was

entered on February 12, 1979, and is not

yet reported. The panel and en banc de-

cisions are reproduced respectively in Ap-

pendix A and B, infra.

JURISDICTION

The en banc judgment of the court of

appeals was entered on February 12, 1979.

This Court's jurisdiction is invoked under

28 U.S.C. 8 1254(1).

QUESTIONS PRESENTED

ONE

Does a conflict exist among the cir-

cuits as to the standard of proof required

for the admission of conspiratorial state-

ments under Rules 104(a) ‘and Rule 801(d) (2)

(E) of The Federal Rules of Evidence?

TWO

Should the court of appeals have re-

manded the instant case back to the district

court for specific findings as required by

Rule 104(a)?

THREE

Does a conflict in principle exist

between the finding by the court of appeals

of one, overall conspiracy and the decision

of this Court in Kotteakos v. United States,

328 U.S. 750 (1946) or the analytical model

of United States v. Borelli, 336 F.2d 376

(2d Cir. 1964)?

FOUR

Did the court of appeals, in uphold-

ing the verdict on the sufficiency issue

depart from the accepted and usual cause

of judicial proceedings as to call for an

exercise of this Court's supervising power?

STATUTES INVOLVED

RULE 104, FEDERAL RULES OF EVIDENCE

(a) QUESTIONS OF ADMISSIBILITY GENERALLY.

Preliminary questions concerning the quali-

fication of a person to be a witness, the

existence of a privilege, or the admissi-

bility of evidence shall be determined by

the court, subject to the privisions of sub-

division (b). In making its determination

it is not bound by the rules of evidence ex-

cept those with respect to privileges.

(b) RELEVANCY CONDITIONED ON FACT. When

the relevancy of evidence depends upon the

fulfillment of a condition of fact, the

court shall admit it upon, or subject to,

the introduction of evidence sufficient to

support a finding of the fulfillment of the

condition. |

missibility of confessions shall in all

cases be conducted out of the hearing of

the jury. Hearings on other preliminary

matters shall be so conducted when the in-

terests of justice require, or when an ac-

cused is a witness, if he so requests.

RULE 801(d) (2) (E), FEDERAL RULES OF EVI-

DENCE

A statement is not hearsay if. . .the state-

ment is offered against a party and is...

a statement by a coconspirator of a party

during the course and in furtherance of the

conspiracy.

STATEMENT OF THE CASE

Petitioner Donald James was indicted

on May 18, 1976. The one-count indictment

charged Petitioner and eleven codefendants

with conspiracy to possess heroin and co-

caine with intent to distribute in viola-

tion of Title 21, U.S.C. 8 841l(a) (1) and

Title 18, U.S.C. 8 2. Of twelve named de-

fendants, five proceeded to trial. Peti-

tioner was found guilty on January 21, 1977

and was sentenced on March 1, 1977 to fif-

teen years incarceration under the provi-

sions of Title 18, U.S.C. 8 4205(c).

A panel decision of the Fifth Circuit

was rendered on July 20, 1978. Inter alia,

the opinion held that a fatal variance did

not exist between the conspiracy alleged

and the conspiracy proven; that the Fifth

Circuit's procedure for determining the ad-

missibility of coconspiratorial statements

under the dictates of United States v.

Apollo, 476 F.2d 156 (5th Cir. 1973) was to

be replaced by Rule 104(a) of the Federal

Rules of Evidence; and sufficient evidence

was introduced to support Petitioner's con-

viction.

On its own motion, en banc considera-

tion was given by the court of appeals. A

decision was entered by the en banc court

on February 12, 1979. The full text of the

panel decision is attached as Appendix A.

Appendix B consists of the as yet unreported

en banc decision.

REASONS FOR GRANTING THE WRIT

oes ‘

The decision of the court of appeals

conflicts with the.decisions of other cir-

cuits. Pursuant to Rule 104(a) of the Fed-

eral Rules of Evidence, the trial court

must determine the admissibility of cocon-

spiratorial statements proffered under Rule

801(d) (2) (E) of the Federal Rules of Evi-

dence. The court of appeals ruled that

"substantial" evidence, rather than a "pre-

ponderance" of evidence was all the trial

court needed to consider in reaching his

threshold determination of admissibility. .-°

[Appendix B at B-7]. As correctly noted by

the court below, such a ruling is in dis-

agreement and in conflict with the decision

of the First!, Sixth’, and Eighth” Circuits,

lunited States v. Petrozziello, 548 F.2d 20

(488 Cake. 1976) «

2united States v. Enright, 579 F.2d 980 (6th

Cir. 1978).

3united States v. Bell, 573 F.2d 1040 (8th ;

Cir. 1978). ‘.

which have applied the “preponderance” test.

The impact of Rule 104(a) and its re-

lation to Rule 801(d) (2) (E) presents an im-

portant issue appropriate for resolution by

this Court.4 Determination of conspirator-

ial non-hearsay is not limited to conspiracy

trials. As noted in the concurring opinion

of the court of appeals:

The majority's rule affects any

prosecution implicating scheme-

type criminal conduct. For ex-

ample, it would apply to prose-

cutions for aiding and abetting,

18 U.S.C. 8 2 (1976), and those

brought under the many statutes

Congress has enacted to combat

Organized crime, e.g., 18 U.S.C.

8 1955 (1976) (prohibition of

illegal gambling business); 18

J U.S.C. 88 1961-68 (1976) (the

RICO statute). Moreover, the

majority's approach goes beyond

4conflicts also exist as to circuits which

‘have not addressed the issue of standard of

proof in terms of Rules 104(c) and 801(d)

(2) (E). See, United States v. Stanchich,

~550 F.2d 1294, 1298 (2nd Cir. 1977); United

States v. Geany, 417 F.2d 1116 (2nd Cir.

1964); cf. United States v. Rodrigues, 491

F.2d 663 (3rd Cir. 1974); United States v.

Herrera, 407 F.Supp. 766 (N.D. Ill. 1975);

United States v. King, 552 F.2d 833 (9th

Cir. 1976), citing United States v. Carbo,

314 F.2d 718 (9th Cir. 1963); United States

v . Pisciotta, 469 F.2d 329 (10th Cir. 1972).

even the criminal realm to dic-

tate the standards for the admis-

Sibility of coconspirator declar-

ations in civil trials, because

the Federal Rules of Evidence

are applicable in both civil and

criminal cases, Fed.R.Evid. 1101

(b) .

Appendix B, at B13, footnote 1.

To insure a uniformity of decisions,

these conflicts justify the grant of cer-

tiorari to review the judgment below.

TWO

The court of appeals should have re-

manded the instant case back to the district

court for specific findings as required by

Rule 104(a).

At oral argument before the en banc

court of appeals, counsel argued that at a

minimum, the instant case should have been

remanded for specific findings as required

by Rule 104(a). Rule 104(a) requires that

preliminary questions concerning the admis-

sibility of evidence shall be determined by

the trial judge. As was recognized by the

panel opinior of the court of appeals. .

The same risk of prejudice to

the defendant against whom co-

conspirator statements are prof-

fered calls for a procedure

which will minimize the possib-

ility of a conviction based even

in part on inadmissible evidence.

We believe that it is unrealis-

tic to assume that a jury will

always engage in the two-step

process of determining admissib-

ility and then guilt. It is en-

tirely likely that the jury will

be so affected by the content of

the very statements whose admis-

sibility they are considering

that the issue of admissibility

will never actually and finally

be resolved. Nor is a defend-

ant adequately protected by the

judge's preliminary determina-

tion that the government's proof

is adequate to support a jury

finding of the fulfillment of

all of the conditions. This was

the practice challenged in Jack-

son v. Denno, supra, with regard

to confessions. Yet the Supreme

Court found it no substitute for

an actual, full, clear-cut, and

reliable determination.

576 F.2d at 1129.

Carrying the analogy of Jackson v. Denno

to its logical conclusion, an actual, full,

clear-cut, and reliable determination on

the record must appear to adequately pre-

serve for appellate review the "determina-

tion" arrived at by the trial court. No

such finding existed in the instant case.

Remand for specific findings is required

by Rule 104(a) and the due process protec-

tions of fundamental fairness.

THREE

Petitioner was indicted for willfully

and knowingly conspiring with eleven named

codefendants and four unindicted coconspir-

ators in what was alleged to be a narcotics

distribution network spanning from Los

Angeles to Atlanta to Philadelphia. As ad-

duced at trial, however, two separate, iso-

lated groups were proven. The only nexus

existing between the two groups was code-

fendant Fred Hill. A fatal variance devel-

oped to the prejudice of Petitioner.

The court of appeals resolved the is-

sue of single versus multiple conspiracies

through application of its prior decision

of United States v. Becker, 569 F.2d 951

(Sth Cir. 1976). 576 F.2d at 1126. Affirm-

ance of Petitioner's conviction on the

multiple conspiracy issue was based upon

misapprehensions of both fact and law. The

record clearly demonstrates that Petitioner

had no common goal, that the nature of con-

spiratorial agreements showed two separate

schemes, and participants did not overlap.

See, Becker, Supra.

As applied to the matter sub judice,

the analysis utilized by the court of ap-

peals directly varies from the dictate of

this Court that although separate schemes

may have similar objectives, constitutional

muster cannot be passed if each scheme was

an end in itself and arose from a separate

agreement. See, Kotteakos v. United States,

328 U.S. 750 (1946). See also, United

States v. Perez, 489 F.2d 51 (5th Cir. 1973).

Proper analysis of the instant question has

been given by the Second Circuit:

[T]he scope of his (each defen-

dant's) agreement must be de-

termined individually from what

was proved as to him. If, in

Judge Learned Hands' well-known

phrase, in order for a man to be

held for joining others in a con-

spiracy, he 'must in some sense

promote that venture himself,

make it his own,' it becomes es-

sential to determine just what

he is promoting and making ‘his

own'.

United States v, Borelli, 336 F.2d 376,

385 (2nd Cir. 1964).

Justice Jackson noted in his concur- -

ring opinion in Krulewitch v. United States,

336 U.S. 440, 445 (1949):

The unavailing protest of courts

against the growing habit to in-

dict for conspiracy in lieu of

prosecuting for the substantive

offenses have, or in addition

thereto, suggest that loose prac-

tice as to this offense consti-

tutes a serious offense to the

fairness in our administration

of justice.

Such a situation developed in the case of

Petitioner.

FOUR

The court of appeals, in upholding the

verdict on the sufficiency issue departed

from the accepted and usual cause of judi-

cial proceedings as to call for an excercise

of this Court's supervisory power.

Evidence introduced against Petition-

er came only through the person of unindict-

ed coconspirator Marlene Cochran. Cochran

allegedly accompanied Petitioner on a trip

ivi Philadelphia to Atlanta at the end of

1973 "around New Year's Eve". Cochran was

then purportedly utilized to repackage bun-

dles of heroin and transport them back to

Philadelphia. > Cochran admitted active

heroin addiction during ‘the time of the al-

leged trip. When questioned in regard to

. the basic chronology of the "New Year's

Eve" trip, Cochran could give no recollec-

tion "because half the time I was high, ya

know". When not using heroin, Cochran was

addicted to methadrene, an amphetamine-

type drug. Cochran admitted to having

Scochran further testified to telephone mes-

sages she received from codefendant Fred

Hill when Hill was purportedly seeking Pe-

titioner for an Ohio to Atlanta drug trans-

action.

active hallucinations during the time of

her addiction. Furthermore, she understood

at the time of trial that. she was not to be

prosecuted as a result of her trial testi-

mony.

In denying Petitioner's contention

that the trial erred in failing to grant

his motion for judgment of acquittal, the

panel paraphrased the oft-cited decision

of Glasser v. United States, 315 U.S. 60

(1942). Judge Tuttle noted:

We are compelled of course to

view the evidence on appeal from

a jury verdict of guilty in the

light most favorable to the gov-

ernment and to accept all rea-

sonable inferences and credibil-

ity choices which will uphold

the verdict.

576 F.2d at 1223, 1224.

Justice Murphy, in delivering the Glasser

opinion, however, went beyond the “light

most favorable to the government" standard.

A key phrase is found in the original text:

The verdict of a jury must be sus-~ ‘

tained if there is substantial

evidence, taking the view most

favorable to the government, to

support it.

Glasser, supra, at 80.

Although the evidence must be viewed in the

light most favorable to the government,

"complete judicial abdication .to the trier

of fact is not required". United States v.

Peterson, 488 F.2d 645, 649 (5th Cir. 1974).

See also, Washington v. United States, 357

U.S. 348 (1958). At some point, the judi-

cial conscience must recognize that on the

basis of the evidence adduced, the jury

must necessarily have had a reasonable

doubt as to the inconsistency and incredi-

bility of the evidence to exclude every

reasonablé hypothesis but that of guilt.

Due process, as guaranteed by the Fifth

Amendment to the United States Constitution,

demands nothing less.

The decision of the panel on the is-

sue of sufficiency of the evidence is a

precedent setting error of exceptional

public importance. To allow the decision

to stand by necessity jeopardizes the abil-

ity of a criminal defendant accused of mem-

bership in a narcotics conspiracy to obtain

a constitutionally permissible trial.

CONCLUSION |

For the foregoing reasons, Petitioner

prays that his petition for a writ of cer-

tiorari be granted.

This the fourteenth day of March,

1979.

Respectfully submitted,

VA —

J.° Roge ompson

Frank 235 gy ella

2403 National Bank of

Georgia Building

34 Peachtree Street, N.W.

Atlanta, Georgia 30303

(404) 688-0440

CERTIFICATE OF SERVICE

We hereby certify that on this four-

teenth day of March, 1979, three copies of

the Petition for Writ of Certiorari were

mailed, postage prepaid, to the Solicitor

General, Department of Justice, Washington,

D. C. 20530.

Frank J.

——

UNITED STATES v. JAMES | 5527

UNITED STATES of America,

Plaintiff-Appellee,

Vv.

Donald JAMES and David Anthony

Butler, ._Defendants-Appellants.

UNITED STATES of America,

Plaintiff-Appellee,

Vv.

Henry SMITH and Kenneth Wayne

Whitmore, Defendants-Appellants.

Nos. 77-5188, 77-5271.

United States Court of Appeals,

Fifth Circuit.

July 20, 1978.

Defendants were convicted in two

separate trials before the United States

District Court for the NorthermDistrict

of Georgia, Charles A. Moye, Jr., J., of

conspiracy to possess heroin and cocaine

with intent to distribute, and they ap-

pealed. The Court of Appeals, Tuttle,

Circuit Judge, held that: (1) evidence

sustained convictions; (2) trial court did

not err in refusing to permit defense

counsel to examine arms of government

witness for evidence of recent drug ad-

diction; (8) defendants were not preju-

diced by admission of records of tele-

phone calls made ‘from specified resi-

dence, sfnce neither defendant was a

party to any phone calls from such resi-

dents, and (4) in determining admissibili-

ty of statements made by alleged cocon-

spirator, trial court alone is to make

threshold determination as to whether

there was a conspiracy, whether state-

ments were made during course of and

in furtherance of conspiracy, and wheth-

er declarant and defendant were mem-

bers of conspiracy.

Affirmed.

1. Criminal Law <1144.13(3, 5)

Court of Appeals is compelled to

view evidence on appeal from jury ver-

dict of guilty in light most favorable to

Government and to accept all reasonable

inferences and credibility choices which

will uphold the verdict.

2. Conspiracy 40.1

A conspirator need not be involved

in every transaction comprising the con-

spiracy in order to be convicted.

3. Criminal Law @351(5)

In prosecution for conspiracy to pos-

sess heroin and cocaine with intent to

distribute, evidence that defendant,

when arrested by police officer pursuant

to warrant issued after defendant’s fail-

ure to appear for trial, denied his identi-

ty and had another person’s driver’s

license in his pocket was properly intro-

duced to show flight and a guilty mind.

4. Conspiracy @47(12)

Evidence in prosecution for conspir-

acy to possess heroin and cocaine with

intent to distribute sustained convictions.

Comprehensive Drug Abuse Prevention

and Control Act of 1970, §§ 401(a)(1),

406, 21 U.S.C.A. §§ 841(a)(1), 846.

5. Conspiracy @=48.1(1)

Existence of multiple conspiracies is

a fact question for the jury.

6. Conspiracy 40.1

Each member of conspiracy need not

be familiar with all of details of illegal

scheme as long as he knows its general

scope; nor is it necessary for all of co-

conspirators to know each other or to

work together on every transaction.

7. Criminal Law @622(2)

Evidence in prosecution for conspir-

acy to possess heroin and cocaine with

Synopses, Syllabi and Key Number Classification

The Synopses, Syllabi and Key Number Classifi-

cation constitute no part of the opinion of the court.

5528 UNITED STATES v. JAMES

intent to distribute sustained finding

that defendants were members of the

one conspiracy alleged, and therefore,

trial court did not err in denying defend-

ants’ motion to sever. Comprehensive

Drug Abuse Prevention and Control Act

of 1970, §§ 401(aX1), 406, 21 U.S.C.A.

§§ 841(a)(1), 846.

8. Witnesses @= 344(2)

In prosecution for conspiracy to peos-

sess heroin and cocaine with intent to

distribute, trial court did not err in re-

fusing to permit defense counsel to ex-

amine the arms of government witness

for evidence of recent drug addiction, in

view of fact that jury was fully aware

of witness’ prior drug addiction, and de-

fense counsel did not establish any quali-

fications as expert in identifying recent

drug addiction by examination of an ad-

dict’s arms.

9. Criminal Law @1169.1(2)

In prosecution for conspiracy to pos-

sess heroin and cocaine with intent to

distribute, admission of records of tele-

phone calls made from specified resi-

dence did not constitute prejudicial er-

ror, in view of fact that neither defend-

ant was a party to any phone calls from

such residence.

10. Criminal Law #=423(1)

Under long-recognized exception to

hearsay rules, statement made by one

member of a conspiracy during the

course of and in furtherance of the con-

spiracy may be used against other mem-

bers of conspiracy if certain conditions

are met.

11. Criminal Law @423(1), 428

In determining admissibility of

statement made by alleged coconspirator,

trial court alone is to make threshold

determination as to whether there was a

conspiracy, whether statement was made

during course of and in furtherance of a

conspiracy, and whether declarant and

defendant were members of conspiracy;

coconspirator’s statements are admissible

if trial court is convinced by a prepon-

derance of evidence that conspiracy ex-

isted, that defendant and declarant were

members of it, and that the statements

were made in the course of and in fur-

therance of the conspiracy. Federal

Rules of Evidence, rules 104(c),

801(d)(2)A), 28 U.S.C.A.

12. Criminal Law @427(5)

Conditions of admissibility of cocon-

spirator’s statements must be established

from evidence independent of the cocon-

spirator’s statements themselves. Feder-

al Rules of Evidence, rules 104(c),

801(d)(2)(A), 28 U.S.C.A.

13. Criminal Law @427(2)

Under Federal Rules of Evidence,

trial court must not admit coconspira-

tors’ declarations unless it has deter-

mined that Government had made the

required threshold showing. Federal

Rules of Evidence, rule 104(c), 28 U.S.

C.A.

14. Criminal Law o671

Under Federal Rules of Evidence,

justice requires that determination of

admissibility of coconspirators’ declara-

tions and any hearings necessary for the

judge to make that determination by a

preponderance of the evidence be con-

ducted outside the presence of jury.

Federal Rules of Evidence, rule 104(c),

28 U.S.C.A.

15. Criminal Law e779

Once trial court has determined out

of hearing of jury that coconspirators’

statements are admissible, jury is not to

be instructed to make its own determina-

tion of admissibility. Federal Rules of

Evidence, rules 104, 801(d)(2)(E), 28 U.S.

C.A.

UNITED STATES v. JAMES

16. Criminal Law <427(5)

Evidence in prosecution for conspir-

acy to possess heroin and cocaine with

intent to distribute sustained finding

that conspiracy existed, that each of de-

fendants were members of it, and that

coconspirators’ statements were made in

the course of and in furtherance of the

conspiracy, and therefore, coconspirators’

statements were admissible. Federal

Rules of Evidence, rule 801(d)(2)(A), 28

U.S.C.A.

Appeals from the United States Dis-

trict Court for the Northern District of

Georgia.

Before TUTTLE and CLARK, Circuit

Judges and EDENFIELD,* District

Judge.

TUTTLE, Circuit Judge:

These appeals arise from two separate

trials but involve the same alleged con-

spiracy, revolving around Fred Hill in

Atlanta, to bring in heroin and cocaine

from California for distribution in Atlan-

ta and Philadelphia. Appellants James

and Butler, who were tried first along

with four other co-defendants, were con-

victed of conspiracy to possess heroin

and cocaine with the intent to distribute,

in violation of 21 U.S.C. §§ 841(a)(1) and

846, but the jury was unable to reach a

verdict as to Smith and Ernestine Bas-

sey, the alleged California supplier. The

court granted a motion for acquittal for

one codefendant, Constance Smith (ap-

pellant Smith’s daughter), and the jury

acquitted Chery] Dumas. A month later

Smith was retried along with appellant

Whitmore, who had failed to appear for

the earlier joint trial. At the second

trial, both Smith and Whitmore were

convicted on the same charge as Butler

and James, and all four appeal.

I. The Conspiracy

The evidence at both trials established

that Hill obtained heroin from sources in

California. Johnny Mack Gordon, an un-

indicted co-conspirator who testified for

the prosecution, assisted Hill in distribut-

ing heroin from Hill's white Mercury

Comet “stash” car, which was parked at

Gordon’s apartment. Gordon made de-

liveries to several people in Atlanta, as

directed by Hill, and he collected $1,000

to $1,200 per one-ounce package when

Hill told him to do so. Gordon had no

personal knowledge that the packages

contained heroin, but he said that Hill

referred to the substance as “boy,” a

nickname for heroin. Gordon deseribed

the contents of the packages as a brown

powder and “guessed” that it was her-

oin. When Gordon first began making

deliveries for Hill early in 1974, the

trunk contained 25 one-ounce packages.

It was refilled on two later occasions,

both times after Lillian Peeples, an unin-

dicted co-conspirator, had transported

drugs to Atlanta from California. The

last supply was seized when Gordon was

arrested in August 1974. Laboratory re-

ports showed that the trunk of the stash

car contained 44 ounces of heroin and

three ounces of cocaine. ‘Other drug

paraphernalia were also seized. The

jury was justified in inferring that the

packages delivered by Gordon for Hill in

Atlanta contained heroin and that it

came from California.

There was also testimony from which

the jury could conclude that Hill sup-

plied heroin for distribution in Philadel-

phia. Marlene Cochran, an unindicted

co-conspirator, testified that she flew to

Atlanta from Philadelphia around New

* United States District Judge, Northern District of Georgia, sitting by designation.

5530 UNITED STATES v. JAMES

Year’s Eve in 1973 with James and an-

other individual. She and James re-

ceived heroin from Hill, who took it

from the trunk of a white Ford or Mer-

cury parked in an apartment complex.

Cochran repackaged the heroin at James’

direction and carried it back to Philadel-

phia for James. We conclude, then, that

the existence of the conspiracy alleged in

the indictment was proved beyond a rea-

sonable doubt.

We turn now to a consideration of

each appellant’s role in the conspiracy.

The facts relating to each appellant’s al-

leged participation are largely uncontest-

ed because none of them chose to offer

any evidence in their defense. We must

decide whether the evidence presented

by the government was sufficient to sup- _

port the convictions and whether one

conspiracy or more were shown. Certain

other issues, including a reconsideration

of our sourt’s treatment of the so-called

bind sore hearsay exception, are

also raised and are discussed below.

II. Sufficiency of the Evidence

{1] We are compelled, of course, to

view the evidence on appeal from a jury

verdict of guilty in the light most favor-

able to the government and to accept all

reasonable inferences and _ credibility

choices which will uphold the verdict.

Glasser v. United States, 315 U.S. 60, 62

S.Ct. 457, 86 L.Ed. 680 (1942).

A. James

In addition to the evidence already

mentioned above concerning James’ role

in transporting heroin from Hill in At-

lanta to Philadelphia, Cochran also testi-

fied that on a later occasion when she

was staying at Smith’s house in Atlanta,

Hill called from Ohio looking for James

because Hill had a package for him.

Hill wanted James to pick it up so he

could get it on the streets.

[2] We believe that these two inci-

dents are sufficient to support the jury’s

verdict of guilty beyond a reasonable

doubt. James argues that Hill on one

occasion went into a separate room to

discuss a drug deal with Patrick Gon-

salves, an unindicted co-conspirator, and

that this proves that James was not

privy to Hill’s conspiracy. However, it is

well settled that a conspirator need not

be involved in every transaction compris-

ing the conspiracy in order to be convict-

ed. United States v. Becker, 569 F.2d

951 (5th'Cir. 1978).

B. Butler

The most damaging evidence against

Butler came from two witnesses: Gor-

don and Gonsalves. Gordon described

two occasions on which he delivered one-

ounce packages of heroin to Butler at his

home in Decatur. Gonsalves testified

about two incidents both of which link

Butler to the drug distribution conspir-

acy. Gonsalves was present at Butler’s

home one time when Hill came over with

two ounces of heroin for Butler so that

Butler could strengthen an earlier deliv-

ery which had been overcut. Hill cut

and bagged cocaine in Butler’s presence.

On another occasion Gonsalves met with

Hill and Butler at a friend’s apartment.

Hill, who had a new shipment of heroin

contained in three large bags, gave a

small amount to Butler as a sample.

This evidence is clearly sufficient to

prove Butler’s knowing participation in

the alleged conspiracy.

C. Whitmore

The two main witnesses against Whit-

more were Gordon and Gonsalves. Gor-

don testified that Whitmore had ap-

proached him at the airport where Gor-

don worked during the late spring or

early summer of 1974. Whitmore told

UNITED STATES v. JAMES 5531

Gordon that he had discussed a transac-

tion with Hill and wanted to get in

touch with him. Hill was out of town

and could not be reached. So Gordon

drove with Whitmore to Gordon's apart-

ment and left Whitmore in front while

Gordon went to the stash car parked in

the back, got two ounces of heroin, and

delivered them to Whitmore. Gordon,

who stated that he never told buyers

where the stash car was located, did not

take Whitmore to the car or tell him

where it was. Gordon did not get any

money from Whitmore because Whit-

more did not say what arrangement he

-had made with Hill for payment. Gor-

don testified that he did not normally

make deliveries without Hill’s authoriza-

tion, but he did so on this occasion be-

cause Whitmore said “it had been pre-ar-

ranged, and I couldn’t get in touch with

{Hill}; I went ahead and did it.” This

incident constitutes the only nonhearsay

evidence tying Whitmore to the conspir-

acy.

When Hill returned in a couple of

days, Gordon told him what had occurred

in his absence. Hill said Whitmore had

lied to Gordon, that he had made no such

agreement with Whitmore before he

left, and that Gordon should not have

done it. Hill also told Gordon that Whit-

more already owed Hill money.

Gonsalves testified that he frequently

purchased heroin from Hill either direct-

ly or through Gordon and that Hill had.

agreed to sell to Gonsalves through Gor-

don when Hill was out of town. In the

summer of 1974 Hill asked Gonsalves if

he had seen Whitmore. Hill said that he

was looking for Whitmore because he

had given him five ounces of heroin for

which he had not been paid and that

when Hill was out of town Gordon had

given him five more ounces for which

Hill had also not been paid. Gonsalves

described Hill as angry. A few days

later Hill told Gonsalves that he had

seen Whitmore and had gotten his mon-

ey. On cross-examination Gonsalves said

that he did not know whether Whitmore

was working with Hill and that he did

not believe that the two worked together

on getting drugs from California. Gon-

salves had told the grand jury that Hill

and Whitmore had separate California

connections.

[3] The only other evidence which re-

lated directly to Whitmore involved his

failure to appear for trial on the date

originally set. A police officer testified

that he had arrested Whitmore in Los

Angeles pursuant to a warrant issued

after Whitmore’s failure to appear.

Whitmore denied his identity and had

another person’s driver’s license in his

pocket. This evidence was properly in-

troduced to show flight and a guilty

mind. United States v. Alonzo, 571 F.2d

1384 (5th Cir. 1978).

[4] Although Whitmore argues that

the independent nonhearsay evidence

against him is insufficient to link him to

the conspiracy, we disagree. Whitmore’s

own statement to Gordon, as related in

Gordon’s testimony, provides proof of all

of the essential elements of the conspir-

acy charged. Whitmore’s statement, ad-

missible against him as an admission of a

party opponent under Fed.R.Evid.

801(d)(2)(A), clearly demonstrates the ex-

istence of a consensual agreement be-

tween Hill and the appellant. Whit-

more’s discussion with Gordon also estab-

lishes that Whitmore knew that Gordon

worked for Hill in distributing heroin.

By arranging to deal with Hill and then

consummating this deal through Gordon,

Whitmore joined the conspiracy. Grant-

ed, he may not have been one of the key

members, but his role was sufficient to

sustain his conviction. It was not neces-

‘ae retin) | -

5532 UNITED STATES v. JAMES

sary for the government to prove that

he participated in every aspect of the

conspiracy, United States v. Rodriquez,

509 F.2d 1342 (5th Cir. 1975), so Gon-

salves’ testimony that Whitmore may

not have been involved in the California

aspects of the scheme cannot help Whit-

more. Hill’s statements to Gonsalves

suggest that Whitmore had dealt previ-

ously with Hill, thus establishing conti-

nuity of the relationship.

D. Smith

The evidence against Smith came

mainly from Cochran, an unindicted co-

conspirator who lived in an apartment

rented from Smith. As mentioned ear.i-

er, Cochran had been involved with

James in transporting heroin from Hill

to Philadelphia early in 1974. She did

not implicate Smith in that transaction.

Smith owned a home in Atlanta, and

Cochran made several trips to Atlanta in

1974 to fix up Smith’s house or to watch

his children. On the last trip to which

she referred, in November of 1974, she

stayed at Smith’s house for two weeks.

Smith was present during at least part

of this time. It was during this visit

that Hill called Smith’s home asking her

if she had seen James. Hill also asked

for Smith but he was not there. Hill

called back three or four times and

talked to Smith. Cochran heard Smith

say that he had not seen James. Later

Smith told her about his phone conversa-

tions with Hill. Hill had said that he

had a “package” for James in Ohio

which James was supposed to pick up.

When James could not be located, Smith

finally agreed to take the package him-

self. Cochran was to go to Ohio for it

until Smith learned that Hill wanted

$2,000 for it. Because Smith did not

have the money in Atlanta, he called his

daughter in Philadelphia and instructed

her to get the money and go to Ohio for

A6é

the package. Cochran said that she un-

derstood “package” to mean heroin.

Cochran also testified that she and one

Earl worked for Smith in Philadelphia

selling heroin from Smith’s or her apart-

ments, mostly to users. During Coch-

ran’s November visit to Atlanta, Earl

called from Philadelphia and told her

that they were out of “stuff,” meaning

heroin, in Philadelphia. Cochran told

this to Smith.

On cross-examination Cochran was

impeached on the basis of prior inconsist-

ent statements made at the first trial.

At that time, she had not been able to

say when she had been in Atlanta. She

was also a former heroin addict and she

was granted immunity for her testimo-

ny.

Smith argues that the transaction with

Hill was an afterthought and that it

does not support the conclusion that he

was a member of the conspiracy. Per-

haps he was not—until then. But once

he formed this agreement with Hill, he

entered the conspiracy. He must have

known about Hill’s operation and that

others, James, for example, were in-

volved in it. In short, his conviction

must stand.

III. Multiple Conspiracies

[5-7] The appellants, by isolating

each of the transactions described above,

argue that multiple conspiracies were

proved rather than the one alleged in

the indictment. This argument is with-

out merit. The existence of multiple

conspiracies is a fact question for the

jury, United States v. Becker, supra, and

there is ample support in the record for

the jury’s conclusion that the appellants

were members of the one conspiracy al-

leged. Each appellant dealt with Hill or

Gordon under circumstances which clear-

UNITED STATES v. JAMES 5533

ly demonstrated their knowledge of the

fact that Hill’s operation encompassed

more than just Hill. Each member of

the conspiracy need not be familiar with

all of the details of the illegal scheme as

long as he knows its general scope. Nor

is it necessary for all of the co-conspira-

tors to know each other or to work to-

gether on every transaction. United

States v. Rodriguez, supra.

We are convinced that the govern-

ment’s proof sufficiently established that

Hill’s drug distribution operation was a

unified scheme in which all appellants

joined. The evidence showed overlap-

ping membership in the various transac-

tions and a centralized operation aimed

at the specific objective of supplying

drugs in large enough quantities and of

a sufficient strength to permit further

distribution. The jury was properly in-

structed on this issue, notwithstanding

James’ argument to the contrary. Be-

cause we hold that only one conspiracy

existed, there was no error in denying

the appellants’ motions to sever.

IV. Miscellaneous

[8] Two other issues raised by James

and Butler do not merit much discussion.

They argue that the court erred in re-

fusing to permit defense counsel to ex-

amine Cochran’s arms for evidence of

recent drug addiction. This restriction

on cross-examination was not error for

several reasons. First, testimonial cross-

examination was adequate to impeach

the witness, who readily admitted her

prior drug addiction, including addiction

during some of the incidents about which

she testified. The jury was fully aware

of this fact and was free to assess her

credibility as it saw fit. Second, limita-

1. At Smith's second trial the court refused to

admit the records because the testimony relat-

ing to Ohio phone calls referred only to incom-

tions on the extent of cross-examination

lie within the sound discretion of the -

trial court, and no abuse of discretion

has been shown. Third, defense counsel

did not establish any qualification as ex-

perts in identifying recent drug addic-

tion by an examination of an addict’s

arms.

[9] James and Butler also argue that

the court erred in admitting records of

telephone calls made from Smith's resi-

dence to Ohio because the records were

not properly authenticated. This issue

occupied a great deal of attention in the

court below. The original records were

destroyed as part of the telephone com-

pany’s normal destruction policy, and no

company employee was able to state

from personal knowledge that the

government’s copy was a true and accu-

rate copy of the originals. However,

even if the authenticity of the records

was not adequately established, admis-

sion of the records was harmless error as

to James and Butler. Neither was a

party to any phone calls from Smith’s

home, and Butler was not even men-

tioned in connection with any phone

calls. The records related to outgoing

calls and James was mentioned only in

connection with incoming calls.' Hill

had asked about James’ whereabouts

when he called Smith’s residence, and

Cochran’s testimony clearly established

this fact. We fail to see how the admis-

sion of the records could have harmed

either appellant.

V. Coconspirator Statements

The final issue in this appeal requires

us to consider the effect of the Federal

Rules of Evidence upon the previous law

regarding the allocation of the functions

ing calls, whereas the records related solely to

calls made from Smith's house.

5534 UNITED STATES v. JAMES

of judge and jury in determining the

admissibility of extrajudicial statements

under the so-called coconspirator excep-

tion to the hearsay rule. We expressly

reserved decision on this issue in two

recent cases because the issue had not

been raised in the district court. United

States v. Hansen, 569 F.2d 406 (5th Cir.

1978); United States v. Tenorio, 565 F.2d

943 (5th Cir. 1978). In this appeal, how-

ever, the appellants moved for a pretrial

hearing outside the presence of the jury

in order to permit the trial judge to de-

termine the admissibility of coconspira-

tor statements. In support of their mo-

tion, they argued that Rule 104(a) of the

Federal Rules of Evidence allocated to

the judge alone the responsibility for de-

ciding the admissibility of such state-

ments and that the complexity of their

case called for this to be accomplished at

a separate nonjury hearing, as permitted

under Rule 104(c). The district court de-

nied the motion, asserting that caution-

ary instructions of the kind required in

United States v. Apollo, 476 F.2d 156

(5th Cir. 1973), would adequately protect

the defendants. Faced with this denial

of their motion, the defendants request-

ed and received Apollo instructions at

trial. They now ask us to reverse their

convictions on the basis of the denial of

their motion. We believe this is an ap-

propriate opportunity to revisit Apollo

and to establish the correct standard and

procedure for handling the admissibility

of coconspirator statements in criminal

conspiracy trials. Applying this newly

formulated standard to the appellants,

we nonetheless affirm their convictions.

{10} Under a long-recognized excep-

tion to the hearsay rules, a statement

made by one member of a conspiracy

during the course of and in furtherance

of the conspiracy may be used against

other members of the conspiracy if cer-

tain conditions are met. Present prac-

tice calls for the judge and the jury to

share the responsibility for determining

whether these conditions have been met.

We have held that the judge’s role is to

make a_ preliminary determination

whether the government has presented

sufficient evidence, independent of the

hearsay itself, to support a finding by

the jury that the alleged conspiracy ex-

isted and that the declarant and the de-

fendant against whom the statement is

offered were members of that conspir-

acy. This is the “prima facie case” stan-

dard enunciated in United States v. Oli-

va, 497 F.2d 130 (5th Cir. 1974), and fol-

lowed in subsequent decisions. See, e.

g., United States v. Rodriguez, 509 F.2d

1342 (5th Cir. 1975); United States v.

Tyler, 505 F.2d 1329 (5th Cir. 1975). If

the judge is satisfied that this test has

been met, then under Apollo and other

cases, the jury is instructed, both when

the hearsay is introduced and at the fi-

nal charge, that it may consider the

hearsay as against a particular defend-

ant only if it first finds that the conspir-

acy existed, that the declarant and the

defendant were members of it, and that

the statement was made during the

course of and in furtherance of the con-

spiracy. See, e. g., United States v.

Lawson, 523 F.2d 804 (5th Cir. 1975);

United States v. Fontenot, 488 F.2d 315

(5th Cir. 1975); Myers v. United States,

3877 F.2d 412 (5th Cir. 1967). However,

the cases are uniformly silent on the

standard which the jury is to apply to its

initial determination. Apparently it is

not uncommon for the jury to be in-

structed that it must find the existence

of the conspiracy and the defendant's

connection to it beyond a_ reasonable

doubt before ever considering the cocon-

UNITED STATES v. JAMES 5535

spirator hearsay.2 Obviously, this ren-

ders the hearsay totally superfluous, for,

if we assume that the jury complied

with the instructions, the hearsay evi-

dence was not available to the jury until

it had already found the defendant

guilty beyond a reasonable doubt. This

flows from the fact that the preliminary

facts necessary for admissibility coincide

with the ultimate facts necessary for

conviction; i. e. the existence of the con-

spiracy and the membership of the ac-

cused in it.

{11] Under the Federal Rules of Evi-

dence, which became effective July 1,

1975, a statement is not hearsay if it is

offered against a party and is “a state-

ment by a coconspirator of a party dur-

ing the course and in furtherance of the

conspiracy.” Fed.R.Evid. 801(d)(2)(E).

While this definitional section of the

Rules removes coconspirator statements

from the realm of hearsay, admissibility

still depends upon the proof of the same

facts as previously. Thus, there must be

a conspiracy, the statement must be

made during the course of and in fur-

therance of the conspiracy, and the de-

clarant and the defendant must be mem-

bers of the conspiracy. However, Rule

801 provides no guidance on whether the

judge or the jury is to decide that these

conditions have been satisfied.

To resolve that question, we must look

to Rule 104, which seeks to delineate the

functions of judge and jury in the deter-

mination of preliminary questions of

fact. The relevant portions of Rule 104

provide:

2. That was the instruction given in this case.

3. The Supreme Court has stated that the ra-

tionale behind the coconspirator rule is the

notion that coconspirators are partners in

crime and the law deems them agents of one

another. The “in furtherance of the conspir-

acy” requirement is analogous to the agency

theory of “in the scope of the agent's authori-

(a) Questions of admissibility gener-

ally. Preliminary questions concerning

the qualifications of a person to be a

witness, the existence of a privilege, or

the admissibility of evidence shall be

determined by the court, subject to the

provisions of subdivision (b). In mak-

ing its determination it is not bound

by the rules of evidence except those

with respect to privileges.

(b) Relevancy conditioned on fact.

When the relevancy of evidence de-

pends upon the fulfillment of a condi-

tion of fact, the court shall admit it

upon, or subject to, the introduction of

evidence sufficient to support a find-

ing of the fulfillment of the condition.

the. admissibility of confessions shall in

all cases be conducted out of the hear-

ing of the jury. Hearings on other

preliminary matters shall be so con-

ducted when the interests of justice

require or, when an accused is a wit-

ness, if he so requests.

The rule thus adopts the orthodox posi-

tion that the judge alone decides prelimi-

nary questions which relate to the com-

petence of evidence and the jury decides

preliminary questions which relate to the

conditional relevancy of the evidence.‘

The language of Rule 104 does not —

conclude our inquiry, however, for nei- |

ther that rule nor the Advisory Commit-

tee’s Notes informs us whether cocon-

spirator’s statements are to be dealt with

under Rule 104(a) as questions of compe-

ty." Anderson v. United States, 417 U.S. 211,

94 S.Ct. 2253, 41 L.Ed.2d 20 (1974).

4. For an early yet authoritative explication of —

the orthodox rule and its variations, see E. |

Morgan, Functions of Judge and Jury in the —

Determination of Preliminary Questions of

Fact, 43 Harv.L.Rev. 165 (1929).

5536 UNITED STATES v. JAMES

tence or under Rule 104(b) as questions

of conditional relevancy. As Weinstein

has observed,

The probler can, on the one hand, be

characterized as a matter of compe-

tence of the evidence—i. e. is the prob-

ability of its reliability sufficiently

great to make it admissible? Viewed

from this perspective the preliminary

issue of the existence of the conspiracy

and the objectioning defendant’s part

in it are questions for the judge to

decide like any other question of hear-

say or privilege.

But, on the other hand, the issue can

be framed in relevancy terms where

the question of admissibility turns on

the relevancy of the evidence. Thus

declarations of a coconspirator, while

often interesting, are largely irrele-

vant to any issue of defendant’s guilt

unless he is first shown to be connect-

ed with the conspiracy. Preliminary

questions regarding relevance are fre-

quently held to be for the jury after

the introduction of sufficient evidence

to justify a jury finding the existence

of the preliminary fact.

M. Berger & J. Weinstein, Weinstein’s

Evidence % 104[05] at 104-40 (1975).

Clearly we must look beyond the lan-

guage of Rule 104 to its underlying poli-

cies in order to determine who should

decide the preliminary questions and

what standard of proof should control

the decision on admissibility. This in-

quiry begins with a recognition that the

danger sought to be avoided is the preju-

5. Compare L. Kessler, The Treatment of Pre-

liminary Issues of Fact in Conspiracy Litiga-

tions: Putting the Conspiracy Back into the

Coconspirator Rule, 5 Hofstra L.Rev. 77

(1976), with P. Bergman, The Coconspirator's

Exception: Defining the Standard of the Inde-

pendent Evidence Test under the New Federal

Rules of Evidence, 5 Hofstra L.Rev. 99 (1976).

dice to the defendant which would result

if the jury were to rely upon coconspira-

tor statements without first addressing

and deciding the admissibility question.

It was this same dange’ which motivated

the Supreme Court to hold in Jackson v.

Denno, 378 U.S. 368, 391, 84 S.Ct. 1774,

12 L.Ed.2d 908 (1964), that a criminal

defendant was entitled to have a “relia-

ble and clear-cut determination of the

voluntariness of [his] confession, includ-

ing the resolution of disputed facts upon

which the voluntariness issue may de-

pend,” made by someone other than the

jury which was to determine his guilt or

innocence.6 The Court was concerned

that the jury’s determination of volun-

tariness would be influenced by its belief

that the confession, even though coerced,

was true. A procedure which permitted

the same jury to resolve both the volun-

tariness issue and the defendant's ulti-

mate guilt left an appellate court unable

to determine how the jury had resolved

these issues. Expressing the view that a

jury simply could not perform the two-

step analysis without being swayed by

the content of the confession, the Court

refused to “assume that [the issues] were

reliably and properly resolved against

the accused.” Id. at 387, 84 S.Ct. at

1786.

The same risk of prejudice to the de-

fendant against whom _ coconspirator

statements are proffered calls for a pro-

cedure which will minimize the possibili-

ty of a conviction based even in part on

inadmissible evidence. We believe that

it is unrealistic to assume that a jury

6. The Court said that the preliminary determi-

nation of the voluntariness of the confession

could be made by the trial judge, another

judge, or another jury. Rule 104(c) now re-

quires hearings on the admissibility of confes-

sions to be conducted out of the hearing of the

jury

e Al10

UNITED STATES v. JAMES 5537

will always engage in the two-step proc-

ess of determining admissibility and then

guilt. It is entirely likely that the jury

will be so affected by the content of the

very statements whose admissibility they

are considering that the issue of admissi-

bility will never actually and finally be

resolved. Nor is a defendant adequately

protected by the judge’s preliminary de-

termination that the government’s proof

is adequate to support a jury finding of

the fulfillment of all of the conditions.

This was the practice challenged in Jack-

son v. Denno, supra, with regard to con-

fessions. Yet the Supreme Court found

it no substitute for an actual, full, clear-

cut, and reliable determination.

We are convinced that the preliminary

questions of conditional relevancy envi-

sioned by Rule 104(b) are those which,

by their very nature, present no such

danger of prejudice to the defendant.

They are questions of probative force

rather than evidentiary policy. They in-

volve simple factual questions which the

jury, with its own common sense, can

answer as capably as the trial judge. In

such situations an instruction to disre-

gard the evidence if the condition upon

which relevancy depends is not met

merely reinforces the jury’s own natural

inclination to ignore what it considers

irrelevant. For example, the Advisory

Committee’s Notes refer to the admissi-

bility of a letter which would only be

relevant to an issue at trial if the party

had written or authorized it. If the jury

concludes that the party did neither, the

letter is of no concern to them.

The admissibility of a coconspirator’s

declarations, however, does not present a

question of relevancy conditioned on fact

which can be properly treated under

Rule 104(b). Rather the admissibility of

such statements must be evaluated by

the trained legal mind. Moreover, co-

All

conspirator statements pose problems

precisely because they are relevant. In-

“deed, such evidence endangers the integ-

rity of the trial because the relevancy

and apparent probative value of the

statements may be so highly prejudicial

as to color other evidence even in the

mind of a conscientious juror, though he

be instructed to disregard the statements

or to consider them conditionally.

Courts have long recognized the logi-

cal dilemmas inherent in setting a stan-

dard for admissibility of coconspirators’

declarations. See, e. g., Carbo v. United

States, 314 F.2d 718 (9th Cir. 1963). Ju-

dicial development of this area of the

law variously has sought to resolve con-

flicting needs to avoid unjustifiably prej-

udicing the defendant’s case with un-

trustworthy evidence, to prevent: pur-

poseless exclusion of evidence relevant to

the government’s case, and to refrain

from freighting the jury with instruc-

tions difficult to follow. Every effort to

accommodate these goals has recognized

that a court must set threshold require-

ments for proof of the existence of the

conspiracy and the connection of the de-

fendant and the declarant with the con-

spiracy before the jury may consider the

declarations in arriving at a verdict. Al-

though this threshold determination is

always close to and often coincident with

the ultimate question, it is an assay that

must be made to prevent the admission

of untrustworthy, prejudicial evidence.

Rule 104 has now made it clear that

we must revise the procedures adopted

in Apollo for testing the trustworthiness

of coconspirator statements—that is for

determining whether the conspiracy ex-

isted and whether the defendant and the

declarant were members of it. Because

the Rule 104(b) exception is inappropri-

ate to test the admissibility of such dec-

larations, we hold that Rule 104(a) re-

5538 UNITED STATES v. JAMES

quires that the judge alone make the

threshold determination of the admissi-

bility of the evidence.”

The jury is to play no role in deter-

mining the admissibility of the state-

ments. This accords with+the decisions

of the Court of Appeals for the First

Circuit in United States v. Petrozziello,

548 F.2d 20 (1st Cir. 1977), and United

States v. Martorano, 557 F.2d 1 (1st Cir.

1977), which expressly held that Rule

104(a) controls the question of admissi-

bility, and with decisions of other cir-

cuits which held even before the

adoption of the Federal Rules of Evi-

dence that the judge alone must deter-

mine the admissibility of coconspirator

statements. See, e. g., United States v.

Geaney, 417 F.2d 1116 (2d Cir. 1964);

Carbo v. United States, 314 F.2d 718 (9th

Cir. 1963). Our holding is also supported

by dictum in United States v. Nixon, 418

U.S. 683, 701 n.14, 94 S.Ct. 3090, 3104, 41

L.Ed.2d 1039 (1974), where the Supreme

Court stated: “Whether the standard

has been satisfied is a question of admis-

sibility of evidence to be decided by the

trial judge.”

Because the trial court is vested with

the sole responsibility for determining

the questions of fact for admissibility of

coconspirator statements, the standard

by which it makes this determination is

to be high enough to afford adequate

protection to the defendant against

7. Dictum in United States v. Ochoa, 564 F.2d

1155 (Sth Cir. 1977), suggests that subsection

(b) is’ the appropriate portion of the rule.

However, the question of the effect of the

Rules of Evidence upon our present practice

had not been raised at trial and we did not

fully explore the issue. We do not consider

ourselves bound by the dictum, particularly

since three recent cases specifically alluded to

the effect of Rule 104(a) and left the question

open. United States v. Hansen, 569 F.2d 406,

410 n.1 (5th Cir. 1978); United States v. Teno-

whom the evidence is offered, yet not so

high as to exclude trustworthy relevant

evidence. Therefore, we hold that co-

conspirator statements are admissible if

the trial judge is convinced by a prepon-

derance of the evidence that the conspir-

acy existed, that the defendant and the

declarant were members of it, and that

the statements were mace in the course

of and in furtherance of the conspiracy.’

[12] Rule 104(a) provides that the

court “is not bound by the rules of evi-

dence except those with respect to privi-

leges.” However, we do not construe

this provision as permitting the court to

rely upon the content of the very state-

ment whose admissibility is at issue.

Rather, we adhere to our current re-

quirement that fulfillment of the conc.

tions of admissibility must be established

from evidence independent of the cocon-

spirator statements themselves. Only by

requiring independent evidence to form

the basis for admissibility will there be

sufficient corroboration of the reliability

of the statements. So while the court

may look at other inadmissible evidence

as well as admissible and admitted proof

in making its determination, the actual

disputed statements themselves may

form no part of the basis for that deter-

mination. This construction of Rule

104(a) comports with earlier Supreme

Court pronouncements that admissibility

must depend upon independent evidence

rio, 565 F.2d 943, 945 (5th Cir. 1978). See also

United States v. Dominquez, 573 F.2d 366, 367

(1978); United States v. Brown, 555 F.2d 407

(5th Cir. 1977).

8. This is the standard adopted by the courts of.

appeals for the first and second circuits, Unit-

ed States v. Petrozziello, supra, and United

States v. Geaney, supra. Weinstein, supra, at

104-44, suggests the criminal standard of

proof beyond a reasonable doubt. The Ninth

Circuit has adopted a prima facie case stan-

dard, Carbo v. United States, supra.

Al2 +

UNITED STATES v. JAMES 5539

in order to prevent the statement from

lifting itseif “by its own bootstraps to

the level of competent evidence.” Glas-

ser v. United States, 315 U.S. 60, 75, 62

S.Ct. 457, 467, 86 L.Ed. 680 (1942). See

also United States v. Nixon, 418 US.

683, 701 n.14, 94 S.Ct. 3090, 41 L.Ed.2d

1089 (1974) (substantial independent evi-

dence required).

[13] The displacement of Apollo by

Rule 104(a) must necessarily affect the

order of proof at trial in most cases;

otherwise defendants would face a dan-

ger of prejudice like that risked under

Apollo. Under Apollo, the jury could

hear coconspirator declarations with an

appropriate instruction before admissibil-

ity was fully resolved. On defendant’s

motion at the close of the government’s

case, the judge could strike the testimo-

ny if no reasonable jury could find the

defendant guilty beyond a _ reasonable

doubt based on the nonhearsay evidence

alone. If the judge was of the opinion

that the evidence should be struck, he

would also have to grant a motion to

acquit, because under Apollo these mo-

tions presented coincident questions of

fact. Under Rule 104(a), however, un-

less the trial judge rules preliminarily on

the admissibility of coconspirators’ decla-

rations, the new rule would retain the

weakness of Apollo. The jury would

still hear declarations of undetermined

trustworthiness. If at the close of the

government’s case the declarations

should turn out to be inadmissible, the

judge would have to instruct the jury to

perform the intellectually difficult task

of deciding the case while disregarding

prejudicial evidence of striking rele-

vance—a job no less demanding than

reaching a preliminary finding under

Apollo. Therefore, under Rule 104 the

court must not admit coconspirators’ dec-

larations until it has determined that the

government has made the required

threshold showing.

Thus, Rule 104 will affect the discre-

tion accorded the trial judge under Fed.

R.Evid. 611 to control the order of proof

at trial, because the judge cannot allow

the jury to hear a coconspirator’s decla-

ration until he has determined admissi-

bility by a preponderance of the evi-

dence. If the prosecution should seek to

introduce a coconspirator’s declaration

early in the trial, sufficient evidence to

support the threshold finding may not

have come in. Thus, the government

must either develop its proof of conspir-

acy and the defendant’s and the declar-

ant’s connection with it before tendering

a coconspirator statement or make such

proof at an extrajury hearing. Discre-

tion may well dictate that the develop-

ment of lengthy proof to make such a

declaration admissible occur only once.

Because the matter is essential to the

proof of any conspiracy charge and must

eventually be heard by the jury, the

judge may require that an early tender

of a coconspirator’s declaration be de-

ferred until the requisite threshold show-

ing has been made, rather than requiring

the government to make its proof initial-

ly at an extrajury hearing.

[14] Rule 104(c) contains one express

limit: hearings on the admissibility of

confessions shall in all cases be conduct-

ed out of the hearing of the jury. The

Rule does not indicate specifically what

other determinations need be so made,

but provides generally for other determi-

nations to be out of the hearing of the

jury “when the interests of justice re-

quire.” The Advisory Committee stated

that detailed treatment of when prelimi-

nary matters should be heard outside the

hearing of the jury was not feasible.

Their Notes to Subdivision (c) suggest

that the court may save time by taking

Al3

5540 UNITED STATES v. JAMES

foundation proof in the presence of the

jury where the evidence on preliminary

questions, though not relevant to jury

issues, may be heard by the jury with no

adverse effect. This rationale cannot

apply to coconspirators’ declarations be-

cause they present serious dangers of

confusion and prejudice. Therefore, we

hold that, under Rule 104(c), justice re-

quires that the determination of the ad-

missibility of coconspirators’ declarations

and any hearings necessary for the judge

to make that determination by a prepon-

derance of the evidence be conducted

outside the presence of the jury.

[15] If the court is satisfied that the

statements are admissible, then they are

to be considered by the jury along with

the other competent evidence in deter-

mining the defendant’s guilt or inno-

cence. “To accept the problem as one of

admissibility of evidence is to recognize

that the declarations, if admissible, shall

be considered by the jury in reaching its

determination upon the issue of inno-

9. We would note that Rule 104 does deprive

the defendant of one significant safeguard

which Apollo procedures vouchsafed. If the

defendant made a motion to strike the hearsay

testimony at the conclusion of all the proof,

Apollo would have required that the hearsay

be tested by whether a jury could find that

proof beyond a reasonable doubt exclusive of

the declarations established the elements of

cence or guilt.” Carbo v. United States,

314 F.2d 718, 736 (9th Cir. 1963). Thus,

once the trial court has determined out

of the hearing of the jury that the state-

ments are admissible, the jury is not to

be instructed to make its own determina-

tion of admissibility.

Nothing in the procedure which we

announce here deprives a defendant of a

trial by jury. The judge is ruling solely

on admissibility of evidence. The guilt

or innocence of the defendant must, of

course, remain a question for the jury to

be decided beyond a reasonable doubt.

{16} Applying this standard the

appellants here as a matter of law, we

are convinced by a preponderaneé of the

independent evidence that the conspiracy

existed, that each of the defendants and

appellants were members of it, and that

the statements were made in the course

of and in furtherance of the conspiracy.

AFFIRMED.

admissibility. The practice under Rule 104

will differ. Because admissibility has been ju-

dicially decided, the most a judge would do

would be to reexamine his prior determination

for error in applying the standard. Moreover,

any concurrent motion for a judgment of ac-

quittal will weigh all the proof including the

declarations which have been allowed.

Al4

Adm. Office, U.S. Courts—West Publishing Company, Saint Paul, Minn.

oe cS a eS

UNITED STATES v. JAMES 3254

UNITED STATES of America,

Plaintiff-Appellee,

Vv.

Donald JAMES and David Anthony

Butler, Defendants-Appellants.

UNITED STATES of America,

Plaintiff-Appellee,

Henry SMITH and Kenneth Wayne

Whitmore, Defendants-Appellants.

Nos. 77-5188, 77-5271.

United States Court of Appeals,

Fifth Circuit.

Feb. 12, 1979.

Defendants were convicted in the

United States District Court for the

Northern District of Georgia, Charles A.

Moye, Jr., J., of conspiracy to possess

heroin and cocaine with intent to distrib-

ute, and the conviction was affirmed by

the Court of Appeals in a panel decision,

576 F.2d 1121. On reconsideration, the

Court en banc, Charles Clark, Circuit

Judge, held, inter alia, that it is for the

judge alone to make the determination

whether out-of-court statements by al-

leged coconspirators are admissible in ev-

idence in a criminal trial.

Affirmed.

Gee, Circuit Judge, concurred spe-

cially and filed opinion.

1. Criminal Law c423(1), 427(2)

In order for out-of-court statement

by alleged coconspirators to be admissi-

ble during criminal prosecution of one

such conspirator, proof must be made

that there was conspiracy and that state-

ment was made during course and in

furtherance thereof, and declarant and

defendant must be members of conspir-

acy. Fed.Rules Evid. rule 801(d\2)E),

28 U.S.C.A.

2. Criminal Law <736(1)

Under Federal Rules of Evidence,

judge alone decides preliminary ques-

tions as to competence of evidence and

jury decides preliminary questions as to

conditional relevancy of evidence. Fed.

Rules Evid. rule 104, 28 U.S.C.A.

3. Criminal Law ¢736(1)

Under Federal Rule of Evidence de-

lineating functions of judge and jury in

determination of preliminary questions

of fact, preliminary questions of condi-

tional’ relevance are those which present

no danger of prejudice to defendant,

questions of probative force rather than

evidentiary policy, and questions as to

fulfillment of factual conditions which

jury must answer. Fed.Rules Evid. rule

104(b), 28 U.S.C.A.

4. Criminal Law <736(1)

Federal Rules of Evidence require

that judge alone make determination of

admissibility of out-of-court statements

by: alleged coconspirators in conspiracy

trial, and jury is to play no role in deter-

mining admissibility of such statements,

overruling United States v. Apollo, 476

F.2d 156. Federal Rules Evid. rule 104,

28 U.S.C.A.

5. Criminal Law <=427(2, 5)

In conspiracy prosecution, declara-

tion by one defendant is admissible

against other defendants only when

there is sufficient showing, by indepen-

dent evidence, of conspiracy among one

or more of. the defendants and declarant

and that declaration at issue was in fur-

Synopses, Syllabi and Key Number Classification

The Synopses, Syllabi and Key Number Classifi-

cation constitute no part of the opinion of the court.

3255 UNITED STATES v. JAMES

therance of conspiracy; as_ preliminary

matter, there must be substantial inde-

pendent evidence of conspiracy at least

enough to take question to jury. Fed.,

Rules Evid. rules 104, 104(a c), 801,

801(d)(2)(E), 28 U.S.C.A.

6. Criminal Law o427(5)

Despite provision of Federal Rules

of Evidence that court is not bound by

rules of evidence except those with re-

spect to privilege when determining pre-

liminary questions concerning admissibil-

ity of evidence, court, when determining

whether out-of-court statements by al-

leged coconspirators are admissible in ev-

idence in conspiracy prosecution, will not

be permitted to rely upon content of

very statement whose admissibility is at

issue; rather, fulfillment of conditions of

admissibility must be established by evi-

dence independent of coconspirator’s

statement itself. Fed.Rules Evid. rule

104(a), 28 U.S.C.A.

7. Criminal Law >427(2, 3)

When out-of-court statement of al-

leged coconspirator is offered in evidence

in conspiracy prosecution, court should,

whenever reasonably practicable, require

showing of conspiracy and of connection

of defendant with it before admitting

declaration of coconspirator; if court de-

termines it is not reasonably practical to

require showing to be made before ad-

mitting evidence, court may admit state-

ment subject to being “connected up.”

Fed.Rules Evid. rule 104, 28 U.S.C.A.

8. Criminal Law o=428

Regardless of whether preliminary

proof of admissibility of out-of-court

statements by alleged coconspirator has

been made in preferred order during

conspiracy trial, or whether coconspira-

tor’s statement has instead been admit-

ted subject to later connection, court

must determine as factual matter, on ap-

propriate motion at conclusion of all evi-

dence, whether prosecution has shown by

preponderance of evidence independent

of statement itself that conspiracy exist-

ed, that coconspirator and defendant

against whom coconspirator’s statement

is offered were members of conspiracy,

and that statement was made during

course of and in furtherance of conspir-

acy; if court concludes that prosceution

has not borne its burden of proof on

such issues, statement cannot remain in

evidence to be submitted to jury and

judge must decide whether prejudice

arising from erroneous admission of

statements can be cured by cautionary

instruction or whether mistrial is re

quired, Fed. Rules Evid. rule

801(d)(2)(E), 28 U.S.C.A.

9. Criminal Law o=>428

Nothing stated in court's declaration

of new rule concerning procedure for es-

tablishing admissibility of out-of-court

statements by alleged coconspirators in

conspiracy trial would prevent trial

judge from requiring more meticulous

procedures to assure that such state-

ments are not admitted until properly

authenticated by substantial independent

evidence and do not remain in proof to

be submitted to jury unless their admis-

sibility is established by preponderance

of evidence. Fed.Rules Evid. rules 104,

801(d)(2)(E), 28 U.S.C.A.

10. Criminal Law <>427(5)

Admission in drug conspiracy prose-

cution of out-of-court statements by al-

leged coconspirator was fully supported

where there was preponderance of inde-

pendent evidence that conspiracy existed,

that each defendant was member of it,

and that statements were made in course

of and in furtherance of conspiracy.

Fed.Rules Evid. rule 104, 28 U.S.C.A.

UNITED STATES v. JAMES 3256

11. Courts <= 100(1)

Newly declared rule concerning

manner of establishing admissibility of

out-of-court statements by alleged cocon-

spirators in conspiracy prosecution would

apply only prospectively to coconspira-

tor’s statements which Government

sought to introduce in trials commencing

after 30 days from date of court’s opin-

ion. Fed.Rules Evid. rule 104, 28 U.S.

C.A.

Appeals from the United States Dis-

trict Court for the Northern District of

Georgia.

Before BROWN, Chief Judge, COLE-

MAN, GOLDBERG, AINSWORTH,

GODBOLD, CLARK, RONEY, GEE,

TJOFLAT, HILL, FAY, RUBIN, and

VANCE, Circuit Judges.*

CHARLES CLARK, Circuit Judge:

The court en bane on its own motion

has reconsidered this case following the

panel decision reported at 576 F.2d 1121

because of possible conflicts between

that decision and prior decisions of this

court touching on the admission of out-

of-court statements by alleged coconspir-

ators and because of the importance of

the question at issue.

The panel opinion fully stated the

facts and circumstances of the case and

the conclusion of the court with respect

to all matters at issue through that part

of the opinion denominated “IV. Miscel-

laneous,” 576 F.2d 1123-27, second line.

The court en banc, therefore, approves

and adopts those parts of the panel opin-

* Judge Tuttle was a member of the panel, the

author of the panel opinion, and, as a member

of the en banc court as he was qualified io be,

28 U.S.C.A. § 46(c), participated in the oral

argument of the case en banc and the en banc

conference. Subsequently, the Omnibus

Judgeship Bill, Public Law No. 95-486 (95th

‘jon for the purpose of dealing with the

matters discussed. The remainder of the

panel opinion denominated “V. Cocon-

spirator Statements” is withdrawn and

the following is substituted in its place:

V. Coconspirator Statements

Under a long-recognized exception to

the hearsay rule, a statement made by

one member of a conspiracy during the

course of and in furtherance of the con-

spiracy may be used against other mem-

bers of the conspiracy if certain condi-

tions are met. Meeting these conditions

is necessary because of the court’s recog-

nition of the danger of prejudice to the

defendant which would result if the jury

were to rely upon coconspirator state-

ments without first addressing and de-

ciding the admissibility question.

(A) Judge or Jury?

Present practice calls for the judge

and the jury to share the responsibility

for determining whether these conditions

have been met. In United States v.

Apollo, 476 F.2d 156 (5th Cir. 1973), we

held that the judge’s role is to make a

preliminary determination whether the

government has presented sufficient evi-

dence, independent of the hearsay itself,

to support a finding by the jury that the

alleged conspiracy existed and that the

declarant and the defendant against

whom the statement is offered were

members of that conspiracy. This is the

“prima facie case” standard enunciated

in United States v. Oliva, 497 F.2d 130

‘(5th Cir. 1974), and followed in subse-

Congress) was approved October 20, 1978. In

view of this, Judge Tuttle elected not to partic-

ipate further in this decision. Judge Thornber-

ry, also a member of the en banc court, took

senior status after the oral argument and en

banc conference. He, too, elected: not to par-

ticipate further in this decision.

3257 UNITED STATES v. JAMES

quent decisions see, e. g., United States

v. Rodriguez, 509 F.2d 1342 (5th Cir.

1976); United States v. Tyler, 505 F.2d

1329 (5th Cir. 1975). If the judge is

satisfied that this test has been met,

then under existing law the jury is in-

structed, both when the hearsay is intro-

duced and at the final charge, that it

may consider the hearsay against a par-

ticular defendant only if it first finds

that the conspiracy existed, that the de-

clarant and the defendant were members

of it, and that the statement was made

during the course of and in furtherance

of the conspiracy. See, e. g., United

States v. Lawson, 523 F.2d 804, 806 (5th

Cir. 1976); United States v. Fontenot,

483 F.2d 315, 324-25 (5th Cir. 1973);

Myers v. United States, 377 F.2d 412,

417-19 (5th Cir. 1967).

This case presents the first opportuni-

ty for us to consider the effect of the

Federal Rules of Evidence upon our

present practice.! Here, the appellants

moved for a pretrial hearing outside the

presence of the jury in order to permit

the trial judge to determine the admissi-

bility of coconspirator statements. . In

support of their motion, they argued

that Rule 104(a) of the Federal Rules of

Evidence allocated to the judge alone the

responsibility for deciding the admissibil-

ity of such statements and that the com-

plexity of their case called for this to be

accomplished at a separate nonjury hear-

ing, as permitted under Rule 104(c).

1. We expressly reserved the decision on this

issue in two recent cases because the issue

had not been raised in the district court, Unit-

ed States v. Hansen, 569 F.2d 406, 401 n.1 (5th

Cir. 1978); United States v. Tenorio, 565 F.2d

943, 945 (5th Cir. 1978). These cases were

decided after United States v. Ochoa, 564 F.id

1155 (5th Cir. 1977), also a case in which the

issue had not been raised below, but in which

the court stated that Rule 104(b) instead of

104(a) left the admissibility question to the

jury.

The district court denied the motion, as-

serting the cautionary Apollo instruc-

tions would adequately protect the de-

fendants. Faced with this denial of

their motion, the defendants requested

and received Apollo instructions at trial.

They now ask us to reverse their convic-

tions on the basis of the denial of their

motion. We believe this is an appropri-

ate opportunity to overrule Apollo and to

establish a new standard and procedure

for handling the admissibility of cocon-

spirator statements in criminal conspir-

acy trials.

{1] Under the Federal Rules of Evi-

dence, which became effective July 1,

1975, a statement is not hearsay if it is

offered against a party and is “a state-

ment by a coconspirator of a party dur-

ing the course and in furtherance of the

conspiracy.” Fed.R.Evid. 801(d)(2)E).

While this definitional section of the

Rules removes coconspirator statements

from the realm of hearsay, admissibility

still depends upon the proof of the same

facts as required previously. Thus, there

must be a conspiracy, the statement

must be made during the course of and

in furtherance of the conspiracy, and the

declarant and the defendant must be

members of the conspiracy.2 However,

Rule 801 provides no guidance on wheth-

er the judge or the jury is to decide that

these conditions have been satisfied.

2. The Supreme Court has stated that the ra-

tionale behind the coconspirator rule is the

notion that coconspirators are partners in

crime and the law deems them agents of one

another. The “in furtherance of the conspir-

acy” requirement is analogous to the agency

theory of “in the scope of the agent's authori-

ty.” Anderson v. United States, 417 U.S. 211,

218 n.6, 94 S.Ct. 2253, 2259 n.6, 41 L.Ed.2d 20,

29 n.6 (1974).

nn ae

ne eee

UNITED STATES v. JAMES 3258

{[2] To resolve that question, we must

look to Rule 104, which delineates the

functions of judge and jury in the deter-

mination of preliminary questions of

fact. The relevant portions of Rule 104

provide:

(a) Questions of admissibility gener-

ally. Preliminary questions concerning

the qualifications of a person to be a

witness, the existence of a privilege, or

the admissibility of evidence shall be

determined by the court, subject to the

provisions of subdivision (b). In mak-

ing its determination it is not bound

by the rules of evidence except those

with respect to privileges.

(b) Relevancy conditioned on fact.

When the relevancy of evidence de-

pends upon the fulfillment of a condi-

tion of fact, the court shall admit it

upon, or subject to, the introduction of

evidence sufficient to support a find-

ing of the fulfillment of the condition.

the admissibility of confessions shall in

all cases be conducted out of the hear-

ing of the jury. Hearings on other

preliminary matters shall be so con-

ducted when the interests of justice

require or, when an accused be a wit-

ness, if he so requests.

The rule thus adopts the orthodox posi-

tion that the judge alone decides prelimi-

nary questions as to the competence of

evidence, and the jury decides prelimi-

nary questions as to the conditional rele-

vancy of the evidence.

The language of Rule 104 does not

conclude our inquiry, however, for nei-

ther that rule nor the Advisory Commit-

tee’s Notes inform us whether coconspir-

ator’s statements are to be dealt with

3. The Court said that the preliminary determi-

nation of the voluntariness of confession could

be made by the trial judge, another judge, or

another jury. Jackson, supra, 378 U.S. at 391

under Rule 104(a) as questions of admis-

sibility or under Rule 104(b) as questions

of conditional relevancy.

We must look beyond the language of

the rule to its underlying policies to de-

termine who should decide the prelimi-

nary questions and what standard of

proof should control the decision on ad-

missibility. A rule that puts the admis-

sibility of coconspirator statements in

the hands of the jury does not avoid the

danger that the jury might convict on

the basis of these statements without

first dealing with the admissibility ques-

tion. It was this same danger which

motivated the Supreme Court to hold in

Jackson v. Denno, 378 U.S. 368, 84 S.Ct.

1774, 12 L.Ed.2d 908 (1964), that a crimi-

nal defendant is entitled to have a “reli-

able and clear-cut determination of the

voluntariness of [his] confession, includ-

ing the resolution of disputed facts upon

which the voluntariness issue may de-

pend,” made byysomeone other than the

jury which is to determine his guilt or

innocence Id. at 391, 84 S.Ct. at 1788,

12 L.Ed.2d at 924.

[3] We are therefore convinced that

the preliminary questions of conditional

relevance envisioned by Rule 104(b) are

those which present no such danger of

prejudice to the defendant. They are

questions of probative force rather than

evidentiary policy. They involve ques-

tions as to the fulfillment of factual con-

ditions which the jury must answer.

The admissibility of a coconspirator’s

declarations in a conspiracy trial, how-

ever, does pose problems precisely be-

cause they are relevant. Such evidence

endangers the integrity of the trial be-

n.19, 84 S.Ct. at 1788 n.19, 12 L.Ed.2d at 924

n.19. Rule 104(c) now requires that hearings

on the admissibility of confessions be conduct-

ed out of the hearing of the jury. ,

3259 UNITED STATES v. JAMES

cause the relevancy and apparent proba-

tive value of the statements may be so

highly prejudicial as to color other evi-

dence even in the mind of a conscien-

tious juror, despite instructions to disre-

gard the statements or to consider them

conditionally. As a result, such state-

ments should be evaluated by the trained

legal mind of the trial judge.

[4] Rule 104 has now made it clear

that we must revise the procedures

adopted in Apollo for testing the trust-

worthiness of coconspirator statements—

that is for determining whether a con-

spiracy existed and whether the defend-

ant and the declarant were members of

it. Because the Rule 104(b) exception is

inappropriate to test the admissibility of

such declarations, we hold that Rule

104(a) requires that the judge alone

make the determination of the admissi-

bility of the evidence. The jury is to

play no role in determining the admissi-

bility of the statements.

The United States, in its brief and on

oral argument, urges this court to re-

place the Apollo rule by construing the

Rules of Evidence in such a manner as

would place the duty to make this deter-

mination upon the judge rather than the

jury. In reaching this conclusion, we

also find ourselves in accord with the

courts of appeals of all of the circuits

which have addressed the issue. Some

of these courts have based such conclu-

sion on their interpretation of the Feder-

al Rules of Evidence. See, e. g., United

States v. Enright, 579 F.2d 980, 982-87

(6th Cir. 1978); United States v. Bell,

573 F.2d 1040, 1043-1045 (8th Cir. 1978);

United States v. Martorano, 557 F.2d 1,

11--12 (Ast Cir. 1977); and United States

v. Petrozziello, 548 F.2d 20, 22 24 (1st

Cir. 1977). Other circuits reached the

same result prior to the adoption of the

Federal Rules. See, ce. g., United States

v. Weiner, 578 F.2d 757, 767-72 (9th Cir.

1978); United States v. Stanchich, 550

F.2d 1294, 1298-99 (2d Cir. 1977); Unit-

ed States v. Trowery, 542 F.2d 623 (3d

Cir.), cert. denied, 429 US. 1104, 97 S.Ct.

1132, 51 L.Ed.2d 555 (1976); United

States v. Jones, 542 F.2d 186, 202-208

(4th Cir.), cert. denied, 426 U.S. 922, 96

S.Ct. 2629, 49 L.Ed.2d 375 (1976); United

States v. Geaney, 417 F.2d 1116, 1119-21

(2d Cir. 1969). The other circuits, the

Seventh, the Tenth, and the District of

Columbia, have not yet decided what ef-

fect the new rules have in this field of

the law. See, e. g., United States v.

Haldeman, 181 U.S.App.D.C. 254, 341

n.247, 559 F.2d 31, 118, n.247 (1976), cert.

denied, 431 U.S. 933, 97 S.Ct. 2641, 53

L.Ed.2d 250 (1977).

(B) By What Standard?

Under our Apollo rule, the trial judge

had to determine whether the prima fa-

cie test had been met before permitting

the jury to consider the statement. In

United States v. Oliva, supra, we de-

scribed this test as “whether the govern-

ment, by evidence independent of the

hearsay declarations of the coconspirator,

has established a prima facie case of the

existence of a conspiracy and of the de-

fendant’s participation therein, that is

whether the other evidence aliunde the

hearsay would be sufficient to support a

finding by the jury that the defendant

was himself a conspirator.” 497 F.2d at

133.

It must be borne in mind that the

prima facie test was used when the jury

also had a part in determining the use of

the statements under the Apollo ruling.

This court has not spoken on the stan-

dard which the jury was to apply to this

determination. Apparently it was not

uncommon for the jury to be instructed

that it must find the existence of the

oe ee ee Se ns SEE Ee 2 Ale Ret

UNITED STATES v. JAMES 3260

conspiracy and the defendant’s connec-

tion to it beyond a reasonable doubt be-

fore ever considering the coconspirator

statement.

Since we now conclude that the trial

court has the responsibility for determin-

ing those questions of fact relating to

admissibility of the statement, the stan-

dard by which the court makes this de-

termination should be high enough to af-

ford adequate protection to the defend-

ant against whom the evidence is of-

fered, yet not so high as to exclude

trustworthy, relevant evidence.

A statement by the Supreme Court in

United States v. Nixon, 418 U.S. 683, 94

S.Ct. 3090, 41 L.Ed.2d 1039 (1974), al-

though dictum, supports the principle

that the standard must be one that re-

quires the trial judge to find at least

enough evidence touching on the critical

issues to support a jury verdict. The

Court said:

Declarations by one defendant may

also be admissible against other de-

fendants upon a sufficient showing, by

independent evidence, of a conspir-

acy among one or more other defend-

ants and the declarant and if the dec-

larations at issue were in furtherance

of that conspiracy.

4. In United States v. Ross, 321 F.2d 61, 68 (2d

Cir.), cert. denied, 375 U.S. 894, 84 S.Ct. 170,

11 L.Ed.2d 123 (1963), the Court applied the

“preponderance” test, but then stated that the

required proof was “not as high as the amount

needed to warrant submission of a conspiracy

charge to the jury.” This standard has been

restated most recently for the Court of Appel-

lees for the Second Circuit in United States v.

Stanchich, 550 F.2d 1294, 1299 n.4 (2d Cir.

1977), and United States v. Geaney, 417 F.2d

1116, 1119 (2d Cir. 1969).

The Court of Appeals for the Third Circuit

adopted the “preponderance” phrase as its

standard, citing Geaney, but it construed the

Id. at 701, 94 S.Ct. at 3104, 41 L.Ed.2d at

1060. Footnote 14 in turn contains the

significant language:

As a preliminary matter, there must

be substantial, independent evidence of

a conspiracy, at least enough to take

the question to the jury. . ...

Whether the standard has been satis-

fied is a question of admissibility of

evidence to be decided by the trial

judge.

Id. at 701 n.14, 94 S.Ct. at 3104 n.14, 41

L.Ed.2d at 1060 n.14. (Emphasis added)

(citations omitted).

There is some confusion resulting from

the use of the terms by the several

courts of appeals to describe the quan-

tum of proof necessary for the trial

judge to admit a coconspirator’s state-

ment. Some courts use the “prima fa-

cie” standard; others refer to a “fair

preponderance” of the evidence. Still

others require “substantial independent

evidence.”

[5] Because of our conclusion, dis-

cussed below, that the trial court's

threshold determination of admissibility

is normally to be made during the pre-

sentation of the government’s case in

chief and before the evidence is heard by

the jury, it is more appropriate to adopt

a “substantial” evidence rule rather than

standard as “more severe than the prima facie

standard,” United States v. Trotter, 529 F.2d

806, 812 (3d Cir. 1976). The standards applied

by other circuits can be understood by refer-

ence to the following cases: United States v.

Enright, 579 F.2d 980 (6th Cir. 1978); United

States v. Bell, 573 F.2d 1040 (8th Cir. 1978);

United States v. Martorano, 557 F.2d 1 (lst

Cir. 1977); United States v. Haldeman, 181

U.S.App.D.C, 254, 559 F.2d 31 (1976), cert. de-

nied, 431 U.S. 933, 97 S.Ct. 2641, 53 L.Ed.2d

250 (1977); United States v. Jones, 542 F.2d

186 (4th Cir.), cert. denied, 426 U.S. 922, 96

S.Ct. 2629, 49 L.Ed.2d 375 (1976).

3261 UNITED STATES v. JAMES

one which requires, at that stage of the

proceedings, a “preponderance” of the

evidence. We conclude that, as stated

by the court in Nixon, supra, a declara-

tion by one defendant is admissible

against other defendants only when

there is a “sufficient showing, by inde-

pendent evidence, of a conspiracy among

one or more other defendants and the

declarant and if the declarations at issue

were in furtherance of that conspiracy,”

418 U.S. at 701, 94 S.Ct. at 3104, 41

L.Ed.2d at 1060, and that “as a prelimi-

nary matter, there must be substantial,

_independent evidence of a conspiracy at

least enough to take the question to the

jury.” Id. at 701. n.14, 94 S.Ct. at 3104

n.14, 41 L.Ed.2d at 1060 n.14. (emphasis

added).

[6] Although Rule 104(a) provides

that the court “is not bound by the Rules

of Evidence except those with respect to

privileges” we do not construe this lan-

guage as permitting the court to rely

upon the content of the very statement

whose admissibility is at issue. We ad-

here to our requirement established in

Apollo that fulfillment of the conditions

of admissibility must be established by

evidence independent of the coconspira-

tor statement itself. This construction

of Rule 104(a) comports with earlier Su-

preme Court pronouncements that ad-

missibility must depend upon indepen-

dent evidence in order to prevent this

statement from “lift{ing] itself by its

own boot straps to the level of compe-

tent evidence.” Glasser v. United

States, 315 U.S. 60, 75, 62 S.Ct. 457, 467,

86 L.Ed. 680, 701 (1942); see Nixon, su-

pra.

The displacement of Apollo by the rule

we now announce may affect the order

of proof at trial in some cases. In our

discussion above, we identify the danger

to a defendant in a conspiracy trial when

the government tenders a coconspirator’s

statement before laying the foundation

for its admission. Courts have on occa-

sion allowed such statements to be heard

by the jury upon the promise that the

prosecutor will “connect it up.” Of

course, if it is connected up, the defend-

ant suffers no prejudice in the order of

proof. If, however, the judge should

conclude at the end of the trial that the

proper foundation has not been laid, the

defendant will have been prejudiced

from the jury’s having heard the inad-

missible evidence.

While the government here urges that

the practice of “connecting up” be per-

mitted to continue at the discretion of

the trial judge, it suggests a remedy for

failure to make the connection which

may be more burdensome and expensive

of prosecutorial and judicial effort than

a reordering of the proof. The govern-

ment suggests that “should the trial

judge determine that the government

has not carried its burden in connecting

the previously admitted evidence, the

court may ‘upon appropriate motion, de-

clare a mistrial, unless a cautionary in-

struction to disregard the statement

would suffice to cure any prejudice.’ U.

S. v. Bell, 573 F.2d 1040, 1044 (8th Cir.

1978); U.S. v. Stanchich, 550 F.2d 1294,

1298 (2d Cir. 1977).” Brief for the Unit-

ed States at 27. In Stanchich the court

quoted from its prior decision in United

States v. Geaney, 417 F.2d 1116 (2d Cir.

1969), which required the judge, who has

concluded that the statement has not

been connected, to “instruct the jury to

disregard the hearsay, or, when this was

so large a proportion of the proof as to

render a cautionary instruction of doubt-

ful utility ., declare a mistrial

if the defendant asks for it.” 417 F.2d

at 1120 (emphasis added).

UNITED STATES v. JAMES 3262

The Court of Appeals for the Eighth

Circuit has included a preferential course

of action in its interpretation of the new

rules dealing with the admission of such

evidence. In United States v. Macklin,

573 F.2d 1046 (8th Cir. 1978), after stat-

ing that the new rule “does not alter the

traditional discretion of the trial judge

to allow the government to place the

statement into evidence on the condition

that it be later shown” to be connected,

stated:

[I]t is preferable whenever possible

that the government’s independent

proof of the conspiracy be introduced

first, thereby avoiding the danger, rec-

ognized in Petrozziello of injecting the

record with inadmissible hearsay in an-

ticipation of proof of a conspiracy

which never materializes.

573 F.2d at 1049, n.8 (emphasis added).

In Petrozziello, supra, the court said in

a footnote:

The judge insisted that the govern-

ment present all its non-hearsay first.

He then decided whether that evidence

permitted reliance on the co-conspira-

tor exception. Nothing in the new

rules or this opinion requires that the

judge’s meticulous approach be aban-

doned. Although time-consuming, it

avoids the danger that hearsay will be

admitted in anticipation of a_ later

showing of conspiracy that never ma-

terializes.

548 F.2d at 23 n.38 (emphasis added),

[7] Both because of the “danger” to

the defendant if the statement is not

connected and because of the inevitable

serious waste of time, energy and effi-

ciency when a mistrial is required in or-

der to obviate such danger, we conclude

that the present procedure warrants the

statement of a preferred order of proof

in such a case. The district court should,

whenever reasonably practicable, require

the showing of a conspiracy and of the

connection of the defendant with it be-

fore admitting declarations of a cocon-

spirator. If it determines it is not rea-

sonably practical to require the showing

to be made before admitting the evi-

dence, the court may admit the state-

ment subject to being connected up.

(D) At the End of the Trial.

[8] Regardless of whether the proof

has been made in the preferred order, or

the coconspirator’s. statement has been

admitted subject to later connection, on

appropriate motion at the conclusion of

all the evidence the court must deter-

mine as a factual matter whether the

prosecution has shown by a_ preponder-

ance of the evidence independent of the

statement itself (1) that a conspiracy ex-

isted, (2) that the coconspirator and the

defendant against whom the coconspira-

tor’s statement is offered were members

of the conspiracy, and (8) that the state-

ment was made during the course and in

furtherance of the conspiracy. Rule

801(d)2)E). If the court concludes that

the prosecution has not borne its burden

of proof on these issues, the statement

cannot remain in the evidence to be sub-

mitted to the jury. In that event, the

judge must decide whether the prejudice

arising from the erroneous admission of

the coconspirator’s statements can be

cured by a cautionary instruction to dis-

regard the statement or whether a mis-

trial is required. See United States v.

Bell, 573 F.2d 1040, 1044 (8th Cir. 1978);

United States v. Stanchich, 550 F.2d

1294, 1297- 98 (2d Cir. 1977).

(E) Conclusion.

[9] This opinion intends to establish

minimum standards for the admissibility

of coconspirator statements. Nothing

stated here shall prevent a trial judge

3263 UNITED STATES v. JAMES

from requiring more meticulous proce-

dures to assure that such statements (1)

are not admitted until properly authenti-

cated by substantial independent evi-

dence and (2) do not remain in the proof

to be submitted to the jury unless their

admissibility is established by a prepon-

derance of the evidence.

[10] In the case at bar, the district

court applied the rule enunciated by this

court in United States v. Apollo, supra,

as elaborated in United States v. Oliva,

497 F.2d 130 (5th Cir. 1974). Under that

rule, the trial court did not submit the

evidence to the jury for its determina-

tion of admissibility until it determined

that the prosecution “ha[d] established a

prima facie case of the existence of a

conspiracy and of the defendant’s partic-

ipation therein, that is [that] the other

evidence aliunde the hearsay would be

sufficient to support a finding by the

jury that the defendant was himself a

conspirator.” 497 F.2d 182 33. Al-

though the procedures which we now

adopt are different from the prima facie

rule announced in Oliva we do not dis-

turb the conclusion reached by the panel

of this Court that the admission of the

hearsay statements was fully supported

because there was “a preponderance of

the independent evidence that the con-

spiracy existed, that each of the defend-

ants and appellants were members of it,

and that the statements were made in

the course of and in furtherance of the

conspiracy.”

[11] Exercising this court’s supervi-

sory power over the district courts, see

LaBuy v. Howes Leather Co., Inc., 352

U.S. 249, 259-60, 77 S.Ct. 309, 315, 1

L.Ed.2d 290, 299 (1957); United States v.

Mendoza, 565 F.2d 1285, 1292 (5th Cir.)

1. I recognize, as | must, that the Committee

Notes do contain expressions supportive of the

majority position. One can only wonder, how-

aff'd, 581 F.2d 89 (5th Cir. 1978) (en

banc); United States v. Chiantese, 560

F.2d 1244, 1254 (5th Cir. 1977) (en bane),

we adopt these rules only prospectively.

Cf. Chiantese, supra, 560 F.2d at 1256.

Accordingly, they are required only as to

coconspirator statements which the

government seeks to introduce in trials

commencing after 30 days from the date

of this opiuion.

The judgment is AFFIRMED.

GEE, Circuit Judge, specially concur-

ring:

Although I think the majority crafts,

in its well-written opinion, a_ tolerable

solution to the difficult evidentiary prob-

lems posed by this appeal, I share many

of the concerns expressed by Judge Tjo-

flat in his special concurrence-—especially

those regarding the trial judge’s control

over te order of proof—and prefer the

course which he suggests.

Among my difficulties with the major-

ity opinion are its description of its con-

struction of Rule 104 as “the orthodox

position.” I do not think a division of

preliminary questions about the admissi-

bility of evidence between judge and

jury orthodox at all. Nor do I ascertain

in the text of Rule 104 any disposition to

depart from the received practice by as-

signing decision of any such matters to

the jury.!

Because I cannot improve upon them,

I offer the words of Dean McCormick,

both for the proposition that decision of

all such matters by the trial judge is

orthodox and as explaining why it is pref-

erable:

“It is orthodox that all questions af-

fecting the admissibility of evidence

ever, why no faintist nod in such a direction is

apparent in the rule itself.

B10

UNITED STATES v. JAMES 3264

belong to the province of the trial

judge. It follows that, when the ad-

missibility of a given piece of evidence

depends upon some preliminary ques-

tion of fact, the existence or nonexis-

tence of that fact is to be determined

by the judge. (Citing Wigmore.)

These include such facts as: Whether

a confession was voluntarily made,

whether a witness has qualified as an

expert, whether an instrument is ad-

missible as an ancient document,

whether sufficient foundation has been

laid for the admission of secondary ev-

idence of the contents of a written

instrument, whether a conspiracy has

been sufficiently shown to warrant the

introduction of the statements of an

alleged conspirator, .* .

“Of course where the evidence as to

the existence of the preliminary fact is

undisputed and such as to admit of

only one finding, no difficulty arises.

But where the evidence is disputed

and is such that a reasonable man

might find either way, a number of

decisions have departed from the or-

thodox rule. They leave the question

of admissibility more or less to the

jury. For example, in Massachusetts

if the judge finds that the fact exists,

he must admit the evidence and

charge the jury to exclude, it unless

they also find that the preliminary

fact exists.

“Although this heterodox

practice may be due to a fortuitous

combination of circumstances, argu-

ments in its favor are not lacking.

One of the’ most common is that ad-

herence to the orthodox rule results

frequently in the judge entirely dispos-

ing of the case. But the answer to

this is: First, that there is no rule

requiring that all relevant evidence be

submitted to the jury, and, second,

Bll

there is nothing inherently wrong with

judge-made decisions.

“When the preliminary fact coin-

cides with an ultimate fact on the

merits it has been argued that since

the jury must alternately pass upon

the existence of the fact it makes no

difference whether they do it as an

incidental question of admissibility or

as a final ruling on the merits. And it

is said that the jury may find differ-

ently from the judge. But this is no

objection. There is no requirement

that the findings of the judge and jury

be consistent, even if made for the

same purpose. A fortiori where as

here the purposes are very different.

The judge passes on the question only

for the purpose of deciding whether

the evidence shall go to the jury. If

admitted, the jury then pass upon the

same question for the purpose of de-

termining the credibility and sufficien-

cy of the evidence.

“The sound arguments unquestiona-

bly favor the orthodox rule. In the

first place, it is the simple one. To

leave questions of admissibility to the

jury merely ‘cumbers the jury with le-

gal definitions and offers an additional

opportunity for quibbling over the ten-

or of the instructions.’ Moreover, if

these questions are left with the trial

judge a greater degree of consistency

will be attained. Certainly this ele-

ment of predictability is desirable.

Furthermore, since the very purpose of

the exclusionary rules is to keep from

the jury evidence which may prejudice

them in their decision, this protection

is better guaranteed by permitting the

judge to entirely exclude objectionable

evidence. Finally, unless we are pre-

pared to scrap the exclusionary rules,

it would seem that the orthodox rule

must prevail, for all arguments in fa-

3265 UNITED STATES v. JAMES

vor of the heterodox practice strike at

the very foundation of the exclusion-

ary rules.”

1 McCormick and Ray, Texas Law of

Evidence 2-5 (2d ed. 1956).

This simple rule seems to me best:

what goes into the record is the responsi-

bility of the judge; what (of this) is

credited, that of the jury. I therefore

concur in the result only.

TJOFLAT, Circuit Judge, with whom

AINSWORTH, Circuit Judge joins, spe-

cially concurring:

The original panel in this case, after

concluding that the appellants’ drug con-

spiracy trials contained no reversible er-

ror and that their convictions should be

affirmed, undertook “to revisit Apollo

and to establish the correct standard and

procedure for handling the admissibility

of coconspirator statements in criminal

conspiracy trials” in this circuit. United

States v. James, 576 F.2d 1121, 1127 (5th

Cir. 1978). The procedure devised was a

“minitrial.” Construing Fed.R.Evid. 104

and 611(a), the panel instructed that a

district judge may not allow the jury to

hear a coconspirator’s out-of-court decla-

ration until the judge, following a hear-

ing conducted outside the presence of

the jury, has determined by a preponder-

ance of the evidence that the declaration

is admissible under Fed.R. Evid.

RO1(d(2)(E). 576 F.2d at 1131, 1182.

This case was taken en bane because

the minitrial procedure fashioned by the

panel is obviously unworkable and oner-

ous. Indeed, the panel’s approach might

well require a district judge, after the

jury has been sworn, to try the entire

case twice—once at the minitrial on the

admissibility question and once before

the jury on the issue of guilt. The en

bane majority, in vacating part IV of the

panel opinion which established the new

minitrial procedure, makes no comment

about the panel’s rationale except to say

that it created possible conflicts with pri-

or decisions of this court dealing with

the admission of out-of-court coconspira-

tor declarations. Ante at , slip op.

at 3256.

Today the majority, exercising the

court’s supervisory power, rewrites part

1V of the panel’s opinion. It substitutes

for the panel’s rigid minitrial approach

an order of proof, designed to accomplish

the minitrial objective, which requires

the district court’s determination of ad-

missibility “normally to be made

before the [out-of-court declaration] is

heard by the jury.” Ante at —, slip

op. at 3260 (emphasis added). In an

attempt to ameliorate the heavy burden

that such a requirement will inevitably

impose, especially on the prosecution and

the court, during the course of a trial,

the majority discards the panel’s prepon-

derance of the evidence standard for de-

termining whether the predicate to ad-

missibility has been established and _ re-

places it with a lower standard, one of

“substantial independent evidence.” At

the same time, the majority tacitly ac-

knowledges that the substantial indepen-

dent evidence standard is inappropriate,

for the majority commands the trial

judge, when reviewing the admission of

the coconspirator’s statement at the con-

clusion of the trial, to determine the

predicate to admissibility by a prepon-

derance of the evidence. Ante at

, Slip op. at 3262 3263.

In order to promulgate this new set of

rules to govern the admissibility of co-

conspirator declarations, ante at :

slip op. at 3268, the majority felt it nee-

essary to interpret Fed.R.Evid. 104,

which concerns the reception of evidence

whose admissibility turns on preliminary

questions. Although the majority opin-

B12

PAS ‘Se te a

ie ae 2

UNITED STATES v. JAMES 3266

ion makes no explicit reference to any

other Federal Rule of Evidence, it clear-

ly implicates three of them: rule 611(a),

the rule prescribing the district court’s

discretion in ordering the proof at trial;

rule 402, the threshold rule making rele-

vant evidence presumptively admissible;

- and rule 408, which requires the court to

receive relevant evidence unless its pro-

bative value is substantially outweighed

by the danger of unfair prejudice. |

write separately not only because I be-

lieve the majority misreads the letter

and the spirit of these rules, but also

because they disharmonize the operation

of other rules critical to the orderly and

just conduct of trials in which coconspir-

ator statements are offered.

The majority writes in the context of

a case in which the defendants have

been charged with criminal conspiracy,

but the majority opinion sweeps far be-

yond conspiracy trials and impinges upon

any case in which statements by those

involved in concerted criminal activity

implicate the accused.' That the cocon-

spirator rule has general applicability is

unequivocally deinonstrated by the legis-

lative history of the federal rules.

“While the rule refers to a coconspirator,

it is this committee’s understanding that

the rule is meant to carry forward the

universally accepted doctrine that a joint

venturer is considered as a coconspirator

for the purposes of this rule even though

1. The majority's rule affects any prosecution

implicating scheme-type criminal cond t.

For example, it would apply to prosecutions

for aiding and abetting, 18 U.S.C. § 2 (1976),

and those brought under the many statutes

Congress has enacted to combat organized

crime, e. g., 18 U.S.C. § 1955 (1976) (prohibi-

tion of illegal gambling business); 18 U.S.C.

§§ 1961-68 (1976) (the RICO statute). More-

over, the majority's approach goes beyond

even the criminal realm to dictate the stan-

dards for the admissibility of coconspirator

declarations in civil trials, because the Federal

no conspiracy has been charged.” §S.Rep.

No.93 1277, 93d Cong., 2d Sess. 24, re-

printed in [1974] U.S.Code Cong. & Ad-

min.News, pp. 7051, 7073 (emphasis add-

ed).

In order to understand precisely what

the majority has done, I think it useful

to recall the practice regarding the ad-

missibility of coconspirator statements

before the adoption of the Federal Rules

of Evidence. Once this background is

set forth, I shail describe what I believe

to be the impact of the Federal Rules on

prior practice and shall attempt to dem-

onstrate the inappropriateness of the

procedures the majority now prescribes.

Prior to the adoption of the Federal

Rules of Evidence, a district judge faced

with a hearsay objection to an out-of-

court statement by a coconspirator made

in the absence of the defendant ? normal-

ly made the following inquiries after de-

termining that the statement was rele-

vant to an issue in the case,

First, is, there a sufficient predicate to

allow the statement to be received for

the truth of its contents? In deciding

this question, the judge looked to the

evidence already presented to the jury to

see if it established a prima facie show-

ing that the statement was made by a

coconspirator of the defendant during

Rules of Evidence are applicable in both civil

and criminal cases, Fed.R.Evid. 1101(b).

2. It the statement were made in the defend-

ant’s presence and under circumstances that

would ordinarily call for a contradiction on his

part, it would have been admissible under the

adoptive admission exception to the hearsay

rule. E. g., United States v. Adams, 470 F.2d

249 (10th Cir. 1972). Under the Federal Rules

of Evidence, ths exception is preserved in rule

801(d)(2)(B), which declares such statements

. not hearsay.

. B13

3267 UNITED STATES v. JAMES

and in furtherance of the conspiracy.

United States v. Oliva, 497 F.2d 180, 182

(5th Cir. 1974). If the evidence before

the jury met this prima facie test, the

statement would have been admitted for

the truth of its contents. If the evi-

dence failed the prima facie test, the

court, generally in a voir dire hearing,

might have entertained the Govern-

ment’s proffer of the predicate necessary

to the siatement’s admissibility. If sat-

isfied that the Government, by the con-

clusion of its case-in-chief, would have

made a prima facie showing by evidence,

independent of the statement itself, that

a conspiracy involving the defendant ex-

isted and that the statement was made

by a coconspirator during and in further-

ance thereof, the court would have re-

ceived the statement subject to connec-

tion, reserving to the close of the

Government’s case its ruling on the hear-

say objection. Whether the court re-

ceived the statement after the predicate

to admissibility had been demonstrated

or beforehand subject to connection, it

was required to give the Apollo instruc-

tion when the statement was received.

- Second, if the predicate, in the evi-

dence presented to the jury or in the

Government’s proffer, were insufficient

to admit the statement for the truth of

the matter asserted, is the statement

otherwise admissible to prove an issue

unrelated to the truth of the statement?

The statement might have heen admissi-

ble as bearing on one or more of a varie-

3. Cf. United States v. Carter, 49) F.2d 625,

628 29 (Sth Cir. 1974) (statement not hearsay

when probative of lack of knowledge that

automobile was stolen),

4. The court might, however, have considered

giving a cautionary instruction admonishing

the jury not to consider the statement for the

truth of its contents. The problem in giving

such an instruction was (and is) that, in the

event that the predicate for tne hearsay excep-

B14

ty of other issues; for example, the

mere act of making the statement may

be probative of the declarant’s knowl-

edge of the conspiracy® and its objec-

tives, or the words spoken may tend to

show the role the (eclarant played in the

conspiracy and may be probative of his

intent,

Third, if the statement tends to estab-

lish or controvert an issue regardless of

its truth, does the probative value of the

statement to prove matters other than

its contents outweigh the prejudice flow-

ing from the revelation of its contents to

the jury and the danger that the jury

might accept them as true? If the pro-

bative value outweighed the prejudice,

the statement was received. Of course,

in this instance an Apollo instruction was

inappropriate.‘

At the conclusion of the Government’s

case and, if warranted, at the conclusion

of all the evidence, the court might have

reconsidered the propriety of admitting

the statement to prove the truth of its

contents in conjunction with the court’s

entertainment of a motion for judgment

of acquittal. For example, in permitting

the statement to come before the jury

subject to later connection, the court

might have opted to defer ruling on the

defendant’s hearsay objection until the

conclusion of the Government's case, or

the court might have received the state-

ment unreservedly, without qualification,

subject only to the defendant's right to

renew his objection, in the form of a

tion were established subsequent to the cau-

tionary instruction, the court would have been

required to give a supplementary instruction

advising the jury that it was entitled to con-

sider the truth of the contents of the. state-

ment. Since this supplementary instruction

tends to emphasize the significance of the

Statement, most defendants requested that the

limiting instruction not be given initially.

UNITED STATES vy. JAMES 3268

motion to strike, at the close of the

Government’s proof (and, again, at the

close of all the evidence if the defense

chose to put on a case). In reconsidering

the hearsay objection, the court exam-

ined the record to determine whether the

Government had established a conspiracy

by the evidence, viewed in the light most

favorable to the Government under

United States v. Glasser, 315 U.S. 60, 62

S.Ct. 457, 86 L.Ed. 680 (1942), indepen-

dent of the truth value of the questioned

statement. If the court concluded that a

conspiracy had not been proven, a ruling

on the hearsay objection would be unnec-

essary since a judgment of acquittal

would be in order. However, if the inde-

pendent evidence justified the submis-

sion of the conspiracy charge to the jury,

the court’s assessment of the statement’s

admissibility continued. In the event

the court found that not all the remain-

ing prerequisites of admissibility, i. e.,

that the statement was made during the

course of and in furtherance of the con-

spiracy, had been established by prima

facie evidence, the court could have

stricken the statement and admonished

the jury not to consider it or it could

have granted a mistrial if instructions

would have been inadequate to erase the

prejudice caused by the erroneous recep-

tion of the statement}

The common law developed these pro-

cedures to give the trial judge maximum

flexibility in ordering the proof at trial

to the end that the evidence be present-

ed in an intelligible way. See United

States v. Apollo, 476 F.2d 156, 163 (5th

Cir. 1978). The Apollo instruction was

5. In weighing the merits of a motion to strike

or tor a mistrial, the trial court would of

course have considered whether the statement

was admissible for any purpose other than to

establish the truth of the matter asserted. If

the statement was probative of other matters,

the court would have weighed such probative

designed to accommodate this discretion

while preserving the defendant's right

not to be convicted because of an inad-

missible coconspirator statement. Id.

Before embarking on a detailed discus-

sion of the new rules of evidence and

how the majority largely misconstrues

them, I briefly summarize how the new

rules alter the preexisting process. As

the majority correctly holds, the task for

determining the admissibility of cocon-

spirator statements to establish the truth

of their contents is now for the judge

alone. This, rule 104(a) mandates.

Therefore, the Apollo instruction is no

longer appropriate.

In determining whether to receive a

coconspirator statement under — rule

801(d)(2) FE), the trial judge may consider

any matter touching on the prerequisites

to admissibility. He is “not bound by

the rules of evidence except those with

respect to privileges,” Fed. R.Evid.

104(a); henee, he may consider the co-

conspirator statement itself. The major-

ity distorts the manifest intent behind

rule 104(a) in construing it to the con-

trary. Moreover, there is no place in a

rule 104(a) determination for the “sub-

stantial evidence” test espoused by the

majority. This test, as the majority ac-

knowledges, is for measuring whether

the predicate to admissibility is suffi-

cient for a jury; it cannot control the

judge’s duty under rule 104(a) to decide

whether the predicate has been estab-

lished.

value against any prejudice that might have

resulted from the jury's consideration of the

statement as true. Only in the event that the

prejudice outweighed the probative value

would the granting of either motion have been

in order. .Cf. Fed. R. Evid. 403

B15

3269 UNITED STATES v. JAMES

The rules do not disturb the district

court’s discretion in ordering the proof

at trial; that discretion is reaffirmed in

rule 61l(a). Accordingly, complicated

cases should still be tried in a manner

that the court judges to be comprehensi-

ble to the jury. Thus, I believe, the

rules seek to avoid a miscarriage of jus-

tice that might result if we straitjacket

the district judges of our circuit by re-

quiring them to alter the natural pro-

’ gression of the trial.

I read the Federal Rules of Evidence

to envision the following procedures for

the admissibility of coconspirator state-

ments. I agree with the majority’s con-

clusion that the rules call for the rejec-

tion of Apollo and that the question of

admissibility is one solely for the judge

under rule 104(a). I reach this result on

somewhat different grounds, however.

The requirements of rule 801(d)(2)E)

that the statement be made by a cocon-

spirator during and in furtherance of the

conspiracy are not conditions on the

statement’s relevancy, which is the sole

concern of rule 104(b). Statements may

be highly relevant even though the con-

ditions of rule 801(d)2)(E) are not met.

A classic example of such a statement is

a postarrest confession. It is not made

during the conspiracy because the declar-

ant has been arrested, United States v.

Warren, 578 F.2d 1058, 1074 (5th Cir.

1978) (en banc), and it is hard to imagine

a case in which such a confession is made

6. This approach would render unnecessary the °

confusing, and I believe incorrect, suggestion

by the original panel, 576 F.2d 1121, 1129 (Sth

Cir. 1978), which is adopted by the majority,

ante at , Slip op. at 3258, that the jury

cannot consider prejudicial evidence when de-

termining relevancy under rule 104(b). This

circuit, sitting en banc, recently rejected the

notion that the jury is incompetent to consider

in furtherance of the conspiracy. As

this example amply demonstrates, the

801(d)(2)(E) requirements are not condi-

tions on the relevancy of the statement

but rather on its admissibility. It is

clear, therefore, that the issue whether

those requirements have been met is one

for the judge under 104(a), because it

provides, “Preliminary questions concern-

ing . . . the admissibility of evi-

dence shall be determined by the court,

subject to the provisions of [104(b)].” ®

As to the standard that the judge

should apply in determining whether the

statement is admissible, I believe that

logic calls for the employment of the

preponderance of the evidence test. The

majority’s position on this point is, to

me, ambiguous at best. First it holds

that the “prima facie” test of United

States v. Oliva, 497 F.2d 130 (5th Cir.

1974) (whether the Government’s case,

independent of the coconspirator’s state-

ment, is sufficient to support a jury find-

ing that the defendant was a member of

the conspiracy) is inapposite because rule

104(a) now calls for the judge, not the

jury, to determine the statement’s ad-

missibility. Ante at , Slip op. at

3259. Then, I submit, it proceeds to

adopt the very test it purports to reject.

Borrowing language from United States

v. Nixon, 418 U.S. 688, 94 S.Ct. 3090, 41

L.Ed.2d 1039 (1974), the majority holds

that a coconspirator’s declaration is not

admissible unless “ ‘there [is] substantial

conditionally relevant evidence that is substan-

tially prejudicial. In United States \. Beecli-

um, 582 F.2d 898 (Sth Cir. 1978) (en banc),

we held that rule 104(b) supplies the standard

for the admissibility of evidence relating to

offenses extrinsic to the indictment. As we

observed in Beechum, extrinsic offense evi-

dence is inherently prejudicial. Jd. at 910.

B16

“«

baht

UNITED STATES vy. JAMES 3270

independent evidence of a conspiracy at

least enough to take the question to the

jury.’” Ante at —-— ~-——-~.-, slip op. at

3261. How this substantial evidence test

differs from the prima facie test I am

unable to perceive. Each test is met if

the Government’s independent evidence

is sufficient to support a jury finding

that the defendant was a member of the

conspiracy.

In choosing the substantial evidence

test the majority considers, and rejects

out of hand, the preponderance of the

evidence standard. It says:

Because . the trial court's

threshold determination of admissibili-

ty is normally to be made during the

presentation of the government’s case

in chief and before the evidence is

heard by the jury, it is more appropri-

ate to adopt a “substantial” evidence

rule rather than one which requires

a “preponderance” of the evi-

dence.

Ante at , Slip op. at 3260 3261. Yet,

in setting forth the procedure the trial

judge must follow at the conclusion of a

conspiracy trial, the majority states that,

upon appropriate motion, the court must

determine whether the prosecution has

established by a preponderance of the

evidence the predicate for the admissibil-

ity of the coconspirator’s statement.

Thus, this anomaly may result: the

judge permits the jury to hear the cocon-

spirator’s statement because the Govern-

ment has shown the existence of the con-

spiracy by substantial evidence, but at

the end of the trial the statement must

be stricken because the judge, in apply-

ing the preponderance of the evidence

test, determines that the conspiracy did

not in fact exist.

7. The preponderance standard is applied to de-

termine the admissibility of other highly preju-

dicial evidence. Suppression hearings are gov-

erned by this standard, United States v. Mat-

lock, 415 U.S. 164, 177 n.14, 94 S.Ct. 988, 996,

‘in favor of a

To support my conclusion that the pre-

ponderance of the evidence standard

alone must apply in resolving the ques-

tion of admissibility, I posit the follow-

ing hypothetical. Assume that the de-

fendant is being tried for the substantive

offense of possession of a controlled sub-

stance with intent to distribute and that

he was a member of a conspiracy to

achieve that end but is not charged with

conspiracy. Statements made by this de-

fendant’s coconspirators would not be

excludable as hearsay if it could be dem-

onstrated that the conspiracy existed,

that the defendant was a member, and

that the statement was made during and

in furtherance of the conspiracy. United

States v. Wright, 491 F.2d 942, 946 (6th

Cir. 1974); United States v. Mendoza,

473 F.2d 692, 695 (5th Cir. 1972); see

text following note 2 supra. But see

United States v. Harrell, 436 F.2d 606, .

616 (5th Cir. 1970), cert. denied, 409 U.S.

846, 93 S.Ct. 49, 34 L.Ed.2d 86 (1972). It

seems clear to me that the task for the

trial judge in this instance would be to

determine these conditions by a prepon-

derance of all the evidence.” It is-imme-

diately apparent that it would not be

enough that there be sufficient evidence

for a jury finding that these conditions

were met; indeed, the jury would never

pass on the issue. The judge would be

compelled to consider all the evidence,

weigh it and make credibility choices,

and determine whether it preponderates

finding that rule

801(d)(2)(E) has been satisfied. The

rules do not differentiate between the

standards for admitting coconspirator

statements in conspiracies that are

39 L.Ed.2d 242 (1974), as are hearings to de-

termine the voluntariness of confessions, Lego

v. Twomey, 404 U.S. 477, 486 87, 92 S.Ct. 619,

625, 30 L.Ed.2d 618 (1972).

B17

3271 UNITED STATES v. JAMES

charged and those that are not, and I

find nothing calling for a distinction

Surciy, the evidentiucy policies in beth

cases are identical. Hence, the majori-

ty’s reliance on a “substantial evidence”

standard, which it defines to be “ ‘at

least enough [evidence] to take the ques-

tion to the jury,’” ante at ---—, slip op.

at 3261, is in my view inappropriate.

The majority may be concerned that

requiring proof by preponderance would

impose too heavy a burden on the prose-

cution, but this is the standard employed

in all instances where the judge deter-

mines admissibility under rule 104(a).

Who would question the appropriateness

of the preponderance standard when the

judge decides preliminary issues such as

the competency of witnesses, the exist-

ence of privileges, or the availability of

the numerous exceptions to the hearsay

rule? Historically, trial courts have been

called upon to consider evidence, often in

the form of a proffer by counsel, in de-

ciding these preliminary issues. The

competency of a witness may, for exam-

ple, turn not only on the court’s observa-

ion of the witness during voir dire but

also on the weighing of other matters

bearing on the witness’s capacity to tes-

tify. To permit the witness to testify

the court must find that the evidence

preponderates in favor of competency; it

could not seriously be contended that the

court should allow a witness to testify if

the greater weight of the evidence indi-

cates that he is incompetent or if the

evidence on the competency issue were

in equipoise.

The trial court employs the same pro-

cedure in determining whether any of

the common law privileges may be in-

voked. For example, in deciding wheth-

er an attorney-client privilege exists, the

court must be presented with a factual

predicate showing the existence of the

atternev-client relationship, that the tes-

whiony sought to be elicited deals with

confidential communications made in the

context of that relationship, and that the

privilege has not been waived.

The hearsay exceptions embodied in

rules 803 and 804 present classic exam-

ples of factual inquiries that must be

undertaken by the trial judge. It is ap-

parent from a cursory reading of each of

these exceptions that a factual inquiry is

required and that the evidence must pre-

ponderate in favor of an exception be-

fore the hearsay can be admitted. Con-

sider, for example, the catchall excep-

tions in 803(24) and 804(5), which allow

hearsay not expressly covered by a des-

ignated exception to be received “if the

court determines that (A) the statement

is offered as evidence of a material fact;

(B) the statement is more probative on

the point for which it is offered than

any other.” Rule 104(a) mandates that

the judge resolve the preliminary issues

with finality. He cannot, as the majori-

ty would have him do, discharge this

duty simply by finding, when faced with

an objection to the reception of the evi-

dence, that the proponent of the evi-

dence has made a showing sufficient to

take the issue of admissibility to a hypo-

thetical jury.

In sum, the burden of resolving factu-

al issues upon which admissibility is

predicated is commonplace in the court-

room. The burden under the coconspira-

tor exception is no different and should

receive no different treatment—the

predicate for the admissibility of a co-

conspirator declaration should be estab-

lished by a preponderance of the evi-

dence, not by a standard that measures

the sufficicney of a case for the jury.

The intolerable burden that the majority

evidently perceives to be involved in re-

B18

ARAB BN hat Pac

NC ae NA Di te Lg a

UNITED STATES v. JAMES 3272

quiring a trial judge to determine the

admissibility of coconspirator declara-

tions by a preponderance of the evidence

is not caused by the rules of evidence

but by the majority’s insistence that “the

trial court’s determination of

admissibility normally

be made before the evidence

is heard by the jury.” Ante at , slip

op. at 3260 (emphasis added).

I would not deny the trial judge the

considerable discretion provided him by

the rules to control the “mode and order

of interrogating witnesses and present-

ing evidence so as to (1) make the inter-

rogation and presentation effective for

the ascertainment of truth, (2) avoid

needless consumption of time, and (3)

protect witnesses from harassment or

undue embarrassment.” Fed.R.Evid.

61l(a). The trial judge is given wide

latitude by this rule to decide when dur-

ing the trial and in what manner the

predicate for admissibility is developed.

Depending upon the circumstances of the

case, he may deem it prudent to receive

the evidence conditionally on nothing

more than the representations of counsel

at a routine sidebar conference. At the

other extreme, he may think that the

potential for mistrial, if the admission of

the evidence proves to be erroneous, is so

great that nothing less than a full-blown

evidentiary hearing is necessary to en-

sure that the statement is properly ad-

-missible. See McCormick, Evidence § 58,

at 122 (2d ed. 1972). Rule 611(a) con-

templates that the trial judge enjoy the

broad spectrum of discretion between

these extremes. But the majority’s re-

quirement that the issue of admissibility

normally be resolved before the state-

ment is received in evidence would con-

fine him to the latter extreme—the min-

itrial—if the decision had to be made by

a preponderance of all the evidence. It

is only for this reason that the substan-

tial evidence rule is “more appropriate.”

Ante at , Slip op. at 3260.

I can imagine no more compelling situ-

ation in which the judge’s discretion in

evaluating the predicate to admissibility

is necessary and appropriate than in con-

spiracy-type trials, which are often high-

ly complex and always difficult to

present to the jury in a meaningful way.

The majority would permit the trial

judge to depart from the normal minitri-

al procedure and to receive the cocon-

spirator’s declaration subject to connec-

tion only if it determines that “it is not

reasonably practical” for the prosecution

to establish the predicate to admissibility

by substantial independent evidence be-

fore eliciting the declaration in the pres-

ence of the jury. Ante at , slip op.

at 3262. The majority does not indicate

what circumstances might make it “not

reasonably practical” for the prosecutor

to establish the predicate to admissibility

in the preferred order, whether and to

what extent findings as to the impracti-

cability must be expressed by the trial

judge if he declines to follow the normal

procedure, and the standard we shall

henceforth employ in reviewing his ac-

tion.

It should always be borne in mind that

however the trial judge exercises his dis-

cretion in deciding to admit a hearsay

statement or any other evidence to

which objection has been voiced, his deci-

sion is subject to review before the case

is submitted to the jury. If a party per-

sists in its objection, the judge will reas-

sess his earlier ruling on the record as a

whole, both at the conclusion of the

Government’s case-in-chief and at the

close of all the evidence, to determine

whether the predicate to admissibility

has been established by a preponderance

B19

3273 UNITED STATES v. JAMES

of the evidence.’ If, for example, the

predicate to the admissibility of a cocon-

spirator’s statement to establish the

truth of its contents is not found by a

preponderance of the evidence, the judge

may instruct the jury to disregard the

statement or, if justice so requires, grant

a motion for mistrial. At this posture of

the case, the trial judge would of course

consider whether the statement had any

evidentiary value apart from its hearsay

aspects and, if so, would determine its

admissibility under rule 403 (quoted in

note 12 infra). See note 5 supra.

Contrary to the majority’s position, |

would allow the trial judge to consider

the contents of the proffered statement

in determining its admissibility. I think

this is the clear mandate of the last sen-

tence of rule 104(a), which states, “In

making its determination [the court] is

not bound by the rules of evidence ex-

cept those with respect to privileges.” ®

Significantly, the Supreme Court, in de-

termining that the judge may consider

hearsay at suppression hearings, made

reference to what was then proposed

rule 104(a) and went on to observe,

8. The majority concedes that at the close of all

the evidence, the judge must decide a motion

to strike by a preponderance of all the evi-

dence. Ante at . slip op. at 3262. The

anomaly of applying at this point a different

standard from the one applied when the state-

ment was offered has already been noted. It

is interesting to note that the majority makes

no provision for a preponderance of the evi-

dence review at the close of the Government's

case-in-chief, as distinguished from the close

of all the evidence. The majority either thinks

such a review is unnecessary at this juncture

or believes that such a review, before the trial

is concluded, would be too burdensome.

It seems to me that both the trial judge and

the parties would want to know, at the close

of the Government's case-in-chief, precisely

There is much to be said

for the proposition that in proceedings

where the judge himself is considering

the admissibility of evidence, the ex-

elusionary rules, aside from the rules

of privilege, should not be applicable;

and the judge should receive the evi-

dence and give it such weight as his

judgment and _ experience counsel.

However that may be, certainly there

should be no automatic rule against

the reception of hearsay evidence in

such proceedings . ...

United States v. Matlock, 415 U.S. 164,

175, 94 S.Ct. 988, 995, 39 L.Ed.2d 242

(1974).

My reading of the rule is also rein-

forced by the Advisory Committee Notes

to rule 104(a). “‘{[T]he judge should be

empowered to hear any relevant evi-

dence, such as affidavits or other reliable

hearsay.”” 28 U.S.C.A. Rules of Evi-

dence at 41 (1975) (quoting McCormick,

Evidence § 53, at 123 n.8 (Ist ed. 1954)).

The Notes continue,

An item, offered and objected to, may

itself be considered in ruling on admis-

sibility, though not yet admitted in ev-

idence. Thus the content of an assert-

ed declaration against interest must be

what evidence is in the record and will eventu-

ally be considered by the jury in its delibera-

tions. Until this is determined, the court may

find it difficult to pass on a motion for judg-

ment of acquittal or for a mistrial. It would

be anomalous to decide either motion on the

basis of evidence admissible only because

“substantial evidence’ supported the predi-

cate, but the majority does not say what stan-

dard should be used at this point.

9. To this extent, I believe that rule 104(a) over-

rules the language quoted by the majority

from United States v. Glasser, 315 U.S. 60,

74-75, 62 S.Ct. 457, 467, 86 L.Ed. 680 (1942).

Ante at , Slip op. at 3261. The First Cir-

cuit has so construed the rule. United Siates

v. Martorano, 557 F.2d 1, 12 (Ist Cir. 1977).

B20

iia Ee ~

UNITED STATES v. JAMES 3274

considered in ruling whether it is

against interest.° . In the case

of hearsay, it is enough, if the declar-

ant “so far as appears [has] had an

opportunity to observe the fact de-

clared.”

Id. (again quoting McCormick, Evidence

§ 10, at 19 (1st ed. 1954)). I am unable

to reconcile the majority’s position—that

the coconspirator’s statement cannot be

used for any purpose in determining its

admissibility under rule 104(a)—with the

language of the rule, the Advisory Com-

mittee Notes, or the Supreme Court’s ob-

servation in Matlock.

As a practical matter, I do not think

the determination whether the statement

should be received in evidence will in

many cases turn on whether the court

considers the truth-value of the state-

ment. A decision that the statement is

admissible to prove its truth automatical-

ly establishes that the statement would

be admissible for other purposes, since

satisfaction of “[t]he requirement that

admissible declarations of coconspirators

be in furtherance of the conspiracy vir-

tually insures that the declarations will

fall within the category of ‘verbal acts,’

which are not hearsay.” McCormick,

Evidence § 53, at 19 (2d ed. Supp.1978)

(footnotes omitted). To determine

whether this requirement has been met

clearly necessitates consideration of the

content of the statement.

The majority paints with such a broad

brush, however, that it apparently oblit-

erates the possibility of admitting cocon-

10. The quotations from Nixon are, as the ma-

jority notes, dicta. More importantly, Nixon

was decided a year before the Federal Rules of

Evidence became effective and the Court did

not purport to interpret the proposed rules.

Cf. United States v. Matlock, 415 U.S. 164,

1975, 94 S.Ct. 988, 995, 39 L.Ed.2d 242 (1974).

11. Rule 402 provides as follows:

spirator statements when relevant to is-

sues apart from the verity of the state-

ments. There is absolutely nothing in its

opinion to the contrary. Indeed, the ma-

jority states, “We conclude that

a declaration by one defendant is admis-

sible against other defendants only when

there is a ‘sufficient showing, by inde-

pendent evidence, of a conspiracy among

one or more other defendants and the

declarant and if the declarations at issue

were in furtherance of that conspiracy,’

[United States v. Nixon, 418 U.S. 683,

701, 94 S.Ct. 3090, 41 L.Ed.2d 1039

(1974)], and that ‘as a preliminary mat-

ter, there must be substantial, indepen-

dent evidence of a conspiracy at least

enough to take the question to the jury.’

Id. at 701 n.14, 94 S.Ct. at 3104 n.14, 41

L.Ed.2d at 1060 n.14 (emphasis added).”

Ante at , Slip op. at 3261 (except

as noted, emphasis added). In my judg-

ment this approach amounts to a judi-

cial repeal of rule 402," which makes

relevant evidence presumptively admissi-

ble. United States v. Beechum, 582 F.2d

898, 907 n.7 (5th Cir. 1978) (en bance).

Invariably, a coconspirator’s declaration

is probative of matters other than the

truth of its contents—the declarant’s

membership in the conspiracy, the char-

acter of his intent, the objectives of the

conspirators, the identity of members

other than the defendant and so on.

And as a trial progresses and other is-

sues are raised, such as the credibility of

the witnesses, including the declarant,

Relevant Evidence Generally Admissible: Ir-

relevant Evidence Inadmissible

All relevant evidence is admissible, except

as otherwise provided by the Constitution of

the United States, by Act of Congress, by

these rules, or by other rules prescribed by

the Supreme Court pursuant to statutory au-

thority. ‘Evidence which is not relevant is

not admissible.

B21

3275 UNITED STATES v. JAMES

the contents of his out of court state-

ment may well have additional bases of

admissibility.

Finally, in addition to restricting, if

not altogether foreclosing, the trial

judge’s authority to admit coconspirator

declarations to prove other matters un-

less the prosecution complies with the

substantial independent evidence rule,

the majority removes from the trial.

judge’s discretion his authority under

rule 403" to weigh the probative value

of the evidence for other purposes

against its prejudice when considered for

the truth of its contents. In effect, the

majority creates a conclusive presump-

tion that the danger of unfair prejudice

substantially outweighs its probative val-

ue.8 Although written in the context of

a criminal coconspirator’s statement, the

logic of the majority’s opinion would ap-

ply equally to any admissions, if not all

out-of-court utterances, as to which a

hearsay objection is raised. I find noth-

ing in the rules, common law, or com-

mentary that would justify the majori-

ty’s special treatment of the narrow evi-

dentiary question before us.

Ill

It seems to me that the only justifica-

tion that the majority has for depriving

the trial judge of his traditional discre-

tion in ordering the proof at trial is that,

given a free hand to control the presen-

tation of the evidence, he may have to

declare a mistrial because of the errone-

ous admission of a hearsay statement.

12. Rule 403 provides as follows:

Exclusion of Relevant Evidence on Grounds

of Prejudice, Confusion, or Waste of Time

Although relevant, evidence may be ex-

chided if its probative value is substantially

outweighed by the danger of unfair preju-

dice, confusion of the issues, or misleading

the jury, or by considerations of undue de-

lay, waste of time, or needless presentation

of cumulative evidence.

The majority professes that its proce-

dures are designed to obviate “the inevi-

‘table serious waste of time, energy and

efficiency when a mistrial is required.”

Ante at , Slip op, at 3262. I find it

hard indeed to believe the majority’s rule

is founded on a concern for judicial econ-

omy. The majority’s preadmission deter-

mination mandate will affect virtually

every federal trial, both criminal and civ-

il, involving concerted activity, because

its analysis is founded on the construc-

tion of a rule of evidence of general

applicability in all proceedings in federal

district court. See Fed.R.Evid. 1101(b);

note 2 supra. Moreover, this preadmis-

sion determination rule will be applied

whenever a coconspirator statement is

sought to be admitted, whether for the

truth of the matter asserted or other-

wise. In today’s world of increasingly

complex and sophisticated criminal cases,

this will occur repeatedly in a given tri-

al.

The procedure I believe the federal

rules call for would result in so few un-

necessary mistrials that far less judicial

energy would be wasted than under the

majority’s plan. The majority admits

that the defendant will not be impermis-

sibly prejudiced by the admission of a

statement subject to connection if, at the

end of trial, the trial judge is able to

find the predicate for admission by a

preponderance of the evidence. Experi-

ence leads me to think that this will be

the case in practically every conspiracy

13. The majority would permit statements to

come in subject to connection if it is “not

reasonably practical” to establish the predicate

prior to admission. This exception still re-

quires that the 801(d)(2)(E) tests be met; it

would not permit the admission of statements

for their nonhearsay value alone.

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UNITED STATES vy. JAMES 3276

trial that would not be subject to dis-

missal for lack of sufficient evidence for

conviction. In those few cases where

there is sufficient evidence to go to the

jury on the issue of guilt but insufficient

evidence for admissibility of the cocon-

spirator’s statement,“ some mistrials

may be avoided by limiting instructions.

In most of these cases, I submit, the

statement would be admissible for rea-

sons apart from its truth. See note 5

supra. Only in the very infrequent case,

therefore, where the coconspirator state-

ment is not admissible for any purpose

and #2 cautionary instruction cannot re-

move the prejudice engendered by its ad-

mission would a mistrial be required.

In sum, perhaps the steps the majority

has taken today in laying down a set of

rules Lo control the Government's use of

coconspirator statements, ante at ;

slip op. at 8268, are in reality motivated

by a concern that criminal cases meriting

14. Thus situation would occur when the evi-

dence is such that it would support a convie-

tion when viewed in the light most favorable

to the Government, United States vo Glasser.

315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942),

but does not preponderate in tavor of the ex-

istence Of & Conspiracy When its quality is tak-

Adm. Offie , U.S. Courts —West Publishing Company, Saint

mistrial because of the erroneous recep-

tion of coconspirator declarations will

nevertheless result in convictions. This

concern may be amplified by the majori-

ty’s frustration at the inability of an ap-

pellate tribunal to retry such cases and

to remedy the perceived injustice; we

are left with but a cold record from

which to determine whether the state-

ment was sufficiently prejudicial to re-

quire reversal, We are required to defer

to the district judge in all but the most

egregious circumstances. But we are

thus limited in every appeal based on the

erroneous admission of evidence. Rather

than adopt the far reaching measures

fashioned by the majority especially for

criminal trials (but clearly applicable in

all cases involving concerted activity), 1

would rely upon our district judges to

make proper and careful application of

the rules of evidence and procedure, to

the end that justice may be achieved.

en into account. It will also occur when, al-

though the evidence preponderates in favor of

a Conspiracy, it does not weigh in favor of

each of the remaining prerequisites to admissi

bility, i. @., that the statement was made by a

coconspirator during and in furtherance of the

conspiracy

. aul, Minn.

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